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Aliens With Invalid Green Cards Allowed to File for Waiver

A green card obtained through a fraudulent scheme is invalid and may subject the holder to removal. But if the green card holder was unaware of the scheme he/she may apply for a waiver of inadmissibility under Section 212(K).

A Section 212(K) waiver may be granted to an immigrant who did not know of his/her “ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence.”

If the waiver is granted, the inadmissibility of the applicant is “cured.”

In a recent case, Shin v. Holder, two brothers from South Korea were part of a group of hundreds of Koreans who obtained their green cards through the fraudulent scheme of a former officer of the Immigration and Naturalization Service. The officer and several middlemen conspired to provide fraudulent green cards after receiving bribes.

The immigration officer and his collaborators were ultimately convicted after the officer turned himself in to the enforcement authorities.

The two brothers were placed under removal proceedings. At their removal hearing, it was proven that they had obtained their lawful permanent resident status through their mother. Their mother, with the help of an immigration broker affiliated with the immigration officer, adjusted to permanent resident status as a spouse of a skilled worker or professional.

This fraud was not known to the two brothers. Their mother told them that she obtained her green card on the basis of her employment as a hairdresser on a U.S. Military base in Korea.

Because the two brothers were linked to the immigration officer’s scheme the immigration judge ordered them removed. The judge said that, although the mother had not knowingly engaged in fraud and that the two brothers had relied on their mother’s representation of their eligibility for a green card, she nevertheless got an invalid green card, and therefore the green cards of the two brothers were also invalid.

The two brothers applied for a waiver of inadmissibility but the immigration judge denied their request. The Board of Immigration Appeals affirmed the decision of the immigration judge.

They then petitioned the Court of Appeals (9th Circuit). The Court affirmed the removal order of the immigration judge, holding that because the mother was never lawfully admitted to permanent residence, the two brothers did not present valid immigrant visas at their entry to the United States.

But the Court said that they could not be precluded from seeking a waiver of inadmissibility because they met the three requirements for waiver, namely that (1) they were inadmissible; (2) they were in possession of an invalid visa; and (3) they were otherwise admissible.

They satisfied the first requirement because they lacked a valid immigrant visa when they entered the United States, thus making them inadmissible. They also met the second requirement because they were in possession of invalid immigrant visas. And they met the third requirement because their lack of a valid visa was the only reason that they were found inadmissible.

In its decision, the Court relied on Mayo v. Ashcroft, a case involving a Filipino citizen who entered the United States as an unmarried daughter although she was married. The immigration judge and the Board of Immigration Appeals ordered her exclusion because of her misrepresentation of her marital status. But the Court of Appeals (8th Circuit) granted her a waiver of inadmissibility because she believed she was unmarried at the time of her entry.

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