"Our featured unpublished decision for February 2014 involves waivers of inadmissibility under Section 212(k) of the Immigration and Nationality Act, a little-known remedy available to noncitizens who unwittingly seek to enter the country on invalidly issued immigrant visas.
The respondent in the case, Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014), entered the United States in 2000 after the approval of a visa petition filed by her mother, who acquired permanent residency in 1991. Unbeknownst to the respondent, her mother’s permanent residency card was obtained through a massive bribery scheme involving a corrupt former INS supervisor named Leland Sustaire.
After the scheme was uncovered, immigration authorities sought to remove not only the direct beneficiaries of the fraud but any relatives they subsequently sponsored. The respondent first learned of the problem while visiting South Korea in 2003, when her brother called to say an issue might exist with her mother’s “green card” and that she should immediately return to the United States.
The respondent reentered the country without incident, but was later charged with removability under Section 237(a)(1)(A) of the INA because her original immigrant visa was not validly issued. The respondent applied for a Section 212(k) waiver, which is available to noncitizens who were unaware that their immigrant visas were invalidly obtained, who could not have discovered the problem “by the exercise of reasonable diligence,” and who were otherwise admissible.
In the initial round of proceedings, the BIA held that the respondent could not seek a Section 212(k) waiver because she was not “otherwise admissible” at the time she entered the country in 2000. The Ninth Circuit reversed the Board’s decision, reasoning that she would have be admissible but for the lack of a validly issued visa.
On remand, Immigration Judge Anthony Murry denied the waiver on an alternative ground: that the respondent could have reasonably discovered the problem with her permanent residency during her trip to South Korea in 2003. The immigration judge also found the respondent did not merit a favorable exercise of discretion because she failed to alert authorities at the port of entry about the potential problem with her green card upon returning to the country.
Writing for a three-member panel, Board Member Linda Wendtland reversed on both counts. With regard to statutory eligibility, Wendtland wrote that the relevant inquiry involved the respondent’s state of mind when she originally sought admission in 2000, not when she reentered the country in 2003. Wendtland noted that as a permanent resident, the respondent could not be regarded as an applicant for admission when returning from South Korea unless she fell subject to one of the exceptions listed in Section 101(a)(13)(C) of the INA.
With regard to the exercise of discretion, Wendtland noted that the respondent was wholly unaware of the bribery scheme and should not be held responsible for fraud committed by others. Unlike the Immigration Judge, Wendtland found the respondent’s failure to advise authorities upon returning from her 2003 trip was not an adverse discretionary factor.
In a concurring opinion, Board Member Roger Pauley wrote that the respondent could have been regarded as an applicant for admission in 2003 because she never validly obtained permanent resident status in the first place. (See this unpublished BIA decision for more discussion on whether noncitizens who invalidly obtain permanent resident status should be regarded as returning LPRs.) Pauley concluded, however, that even assuming the respondent was seeking admission in 2003, she qualified for the waiver as a matter of law and discretion." - Ben Winograd, Mar. 17, 2014.