I don't usually blog about unpublished cases, but today I'm making an exception. The Third Circuit issues a non-precedential decision regarding marriage fraud (one of the stickiest areas of immigration practice) and 237(a)(1)(H) waivers which I think is worthy of some attention. Tima obtained conditional residence through his marriage to a U.S. citizen, but was later convicted in federal court for marriage fraud. He admitted that his marriage to his first wife was fraudulent. He later remarried and had three children with his second wife, who eventually became a naturalized U.S. citizen. Tima was placed in removal proceedings, where he was charged with removability based on marriage fraud, commission of a crime involving moral turpitude, and the fact that his conditional residence was terminated. Tima argued to the Third Circuit that he could stack a 212(h) waiver (which would waive the immigration consequences of the criminal conviction) with a 237(a)(1)(H) waiver (which would waive the immigration consequences connected with marriage fraud even when there is no criminal conviction). The Government argued (and the Immigration Judge agreed) that the termination of Tima's conditional residence for failure to file a petition to remove the conditions on his residence (I-751) was a separate ground of removability that could not be cured by the waivers.
The Third Circuit found that the 212(h) argument had not been exhausted before the Board of Immigration Appeals, and thus, it had no jurisdiction to consider it. However, it disagreed with the Immigration Judge's finding that the termination of Tima's residence was a separate ground of removability that could not be cured by the 237(a)(1)(H) waiver. The court noted that the form to remove the conditions on his residence would have required Tima to declare, under penalty of perjury, that his marriage to his first wife was not for the purposes of obtaining immigration benefits. Before the form was due, however, he had pled guilty to entering into a sham marriage to his first wife to obtain immigration benefits. Thus, if he had submitted the I-751, he would have committed perjury. Thus, the Government's argument that Tima should have filed the I-751 was untenable.
The Third Circuit remanded the case to allow for consideration of the 237(a)(1)(H) waiver. Moreover, even though the 212(h) waiver had not been exhausted before the Board, Tima would have the opportunity on remand to fully raise this issue.
The full text of Tima v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/133935np.pdf