A029 235 328 enteed he second maiage audulenty and solely the pupose ofobtaning law immigaton statu (I.J. at 1, 7; at 44-50; Exhs 1 3A)he espondent admitted the allegations in the N A, conceded he emovablity as chaged, and sought a waive unde ection 237(a)()(H) of the Act J. at 2 at 3-5). he Iigation Judge und that the epondent (1) wa not statutoily eigie the wave and (2) had not deontated that she eited the waive in the execse of discetion (IJ at 3-8).II ISSUE he issue in thi cae s whethe a section 237(a)(l)(H) wave is avalable to aliens who adust thei tatus witn the Unted States. Hee the espondent seeks to waive the aud she commied at the time ofhe adjustent of stats to that ofa lawl pemanent eident, aud that occrred ae he initia enty into the United State as a nonimmgant In thi decision we wil examine the scope of the 237(a)(l )(H) aud waive in light
he 1996 aendent to he Act in deteining whethe the pase at the time of admision as used at ecton 237(a)(l)(H) of the Act include aud o misepesentation at the time of an alien's adjustment of tas.We concude that an alen adjustment of stats withn the United States can conttute an adission puoses of a w ive nde eton 237( a)(l )(H) of the Act heee an alen ay be ganted thi waive aud o msepeentation coited at the tie of he adustent oftatus.
SANDARD OF EVIEW We eview an Imigation Judges ndings of ct cea eo 8 R § 003 l(d)(3)(i)We eview quetions of aw, diceton, o judgent, and al othe isues
8 FR§ 1003.1( d)(3)(ii).
HE IMMIGRAION JUDGES DEISION AND HE ARIES' OSIIONShe Immiation Judge nd that the espondent was not tatutoiy eligible a waive unde section 237(a)(l)(H) of the Act because pio copaale waves nde me sections 24l(a)(l)(H) (1990) and24l( ofteAct(l 961), 8 U.S§§ 25l(a)(l)(H), (, wee only avaiabe aud o isepesentation at the tie of an alens enty nto the United State (IJ at 3)
cng Kaen v INS,
460 F2d 46(9th i 972) In
Mate f Cnnelly pa
this Boad hed that a aud wave pursuant to secton 24l( of the Act only waive ecldail gound that eisted at the tme of an aliens entry intothe United States and becaue an aien's adjustment of stas unde section 245 of the Act was not an enty into the Uited State aud o msepesentaton coted at the tie of adjstet oftatu was not wihin the scope of the waive. he Imigation Judge also und
360 3d 1142 (9th 2004) to be pesaive (IJ at 4) In that case the United States ot ofAppeals the Ninth cit which ha uidiction hee addeed section 237( a)(2)(A)(i)
ofthe Act to deteine whee an alien wa eovable as one convicted of a cie involving moaltupitude (I) commited wthin 5 yeas ae the date ofadission Sila to ths espondentShivaaman enteed the United State as a nonimigant and adjuted stats 7 yea late (IJ at 7)2
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)