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Allowed to Keep Green Card Despite Fraud

A green card obtained through a fraudulent scheme is invalid. Similarly, the green card of an alien who acquires lawful permanent residence on the basis of a visa petition filed by a holder who obtained his green card by fraudulent means is also invalid and he is inadmissible to the U.S. However, he may file a waiver of inadmissibility under Section 212(k) if he was not aware of the fraudulent scheme.

A Section 212(k) waiver may be granted if the alien was not aware of his ineligibility for admission and could not have ascertained his ineligibility by the exercise of reasonable diligence.

A case recently decided by the Board of Immigration Appeals involved Jin Hee Shin, a citizen of the Republic of Korea, who obtained her green card through her mother whose green card was issued through a criminal fraudulent scheme.

In 1991, Shin’s mother obtained a green card for herself by paying a bribe to a corrupt officer of the Immigration and Naturalization Service. Shortly thereafter, her mother filed an alien relative petition on her behalf as an unmarried daughter of a lawful permanent resident. The visa petition was approved in 1992.

Shin was granted lawful permanent residence status on the basis of her mother’s visa petition in 2002 and she entered the U.S. The fraud was not known to her. Her mother told her that she obtained her green card on the basis of employment as hairdresser on a U.S. Military base in Korea.

When the Department of Homeland Security (DHS) found out that Shin’s LPR status resulted from her mother’s bribery, she was placed in removal proceedings. She applied for Section 212(k) waiver with the immigration judge who denied her request. The decision was sustained by the Board of Immigration Appeals (BIA) finding Shin ineligible for the waiver.

The Ninth Circuit Court sustained Shin’s appeal and found her eligible to apply for a waiver under Section 212(k). The court reasoned that the waiver may be granted to an immigrant who is inadmissible at entry due to the lack of a valid immigrant visa and was not otherwise inadmissible on other grounds. The case was remanded to the immigration judge to hear the merits of her waiver application.

On remand, Shin testified that she went to South Korea in early 2003. While she was in South Korea, her brother, who was also an LPR, called her and informed her that there might be a problem with her mother’s green card and that she should return to the U.S. immediately, which she did in the next two weeks.

The immigration judge denied her waiver application. The court pointed out that Shin was placed on notice that her green card was defective but she did not inquire from her mother about the problem and entered the U.S. using her problematic green card. Because she failed to exercise any diligence to ascertain information regarding her defective green card, she was not eligible for the waiver.

The BIA reversed the lower court’s decision and concluded that eligibility for the 212(k) waiver depended on her state of mind when Shin applied for admission as an immigrant in 2000 and not when she returned as an LPR in 2003.

Also, the BIA reasoned that as a matter of discretion, Shin could not be held responsible for the fraudulent acts committed by others without her knowledge. Moreover, she had a facially valid green card which authorized her to enter the U.S. She had a home and was employed as registered nurse in the U.S.; therefore it was expecting too much of her to abandon her residence in the U.S. simply because her brother informed her of a “problem” with her green card, a problem which she was not even aware of. The BIA sustained her appeal and found her eligible for the 212(k) waiver.

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