Court Issues Detrimental Ruling for Those Who Commit Fraud
May 28, 2008
A recent court decision issued by the 9th Circuit Court of Appeals is wreaking havoc for those seeking to acquire permanent residency after having entered the United States through fraudulent means. The court case puts into limbo the ability of anyone who has entered the United States through fraudulent means from obtaining lawful permanent residency.
The case of Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), involves a non-US citizen who entered the United States through a checkpoint in San Ysidro, California using a green card that belonged to someone else that resembled him. Mr. Orozco ultimately married a United States citizen and sought to acquire lawful permanent residency through the marriage.
Prior to the court ruling, the Department of Homeland Security (DHS) would allow individuals in that situation to apply for adjustment of status to lawful permanent residency in the United States. Due to the fraudulent use of a document at entry, however, individuals would also need to apply for a fraud waiver under the Immigration and Nationality Act (INA) section 212(i).
The Orozco decision now completely reverses this possibility by stating that an individual who enters the United States through fraudulent means is statutorily ineligible for adjustment of status to lawful permanent residency. Further, the availability of a 212(i) fraud waiver does not render an individual eligible for adjustment of status. As such, the DHS no longer needs to even consider a 212(i) fraud waiver when filed with an adjustment of status application because a person is entirely ineligible for the adjustment of status.
The implication of the court’s decision is that any individual who has entered the United States through fraudulent means remains eligible to acquire lawful permanent residency if there is a basis for it, such as marriage to a United States citizen. The individual, however, can now only seek permanent residency at a United States Embassy outside of the United States. The individual would still need to apply for a 212(i) fraud waiver due to the fraudulent entry into the United States. As well, the individual may be subject to additional bars, such as the 3 or 10 year unlawful presence bar, which would require the filing of additional waiver applications.
The reach of the Orozco decision remains to be decided. The decision in the case is presently binding only in states covered by the 9th Circuit, which are California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Hawaii, and Alaska. Other states are not bound by the decision and, in fact, the 2nd Circuit Court of Appeals has also recently issued a decision reaching the opposite conclusion. In addition, the 9th Circuit has provided the parties in Orozco up to July 11 to file a petition for rehearing and has halted the issuance of the mandate until the parties are able to resolve the matter.
The decision in the Orozco case is far reaching and requires any individuals who entered the United States through fraudulent means to ensure that they are properly represented in any immigration proceedings, whether before an immigration judge or the immigration service. Many issues surrounding the court decision abound and it is only through an immigration attorney intricately familiar with the ever changing laws can one ensure proper and effective legal counsel.
Aquino & Aquino, A Professional Law Corporation, also handles personal injury, family law, criminal defense, employment discrimination, unlawful termination, wills, and living trusts.
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