Termination of Removal Proceedings for Senegalese Client in Ohio with Marriage, Fraud Entry, Admission, and Waiver Issues

Juan Paolo Pasia Sarmiento

Case Conclusion Date:September 23, 2010

Practice Area:Immigration

Outcome:Removal Proceedings Terminated

Description:CASE: Removal Proceedings, Adjustment of Status APPLICANT / BENEFICIARY: Senegalese LOCATION: Ohio Our client entered the U.S. using his brother’s passport back in 2001. He presented this at the airport customs and was let in by the officer. The officer checked the passport and asked a few questions to our client, as is customary, and he was able to enter despite using his brother’s passport. Several years later, our client married a U.S. Citizen. Knowing than an I-601 hardship waiver was needed for his green card application due to his fraudulent entry with his brother’s passport, he filed everything together with the 601 waiver. The I-130 petition was approved, which means that the government believed the marriage was in good faith. The green card application though was denied, as well as the I-601 waiver. The denial pointed out that there was not enough hardship to meet the standards for the 601 waiver. An appeal was filed to the AAO for the 601 waiver and after almost a year, the 601 was approved. However, our client was issued a Notice to Appear and was scheduled for a removal hearing with the Cleveland Immigration Court. Our office was retained to represent him for removal proceedings. Days before the hearing, the government changed the Notice to Appear and alleged him as an “alien present in the United States who has not been admitted or paroled” under section 212(a)(6)(A)(i). With this charge, even with the approval of the I-601 hardship waiver, our client would not be eligible for his green card. The government’s position was that our client’s entry with his brother’s passport was not an “admission” and that since he was not admitted, he can’t be eligible to adjust status as a permanent resident under INA § 245A. At the Master hearing, we denied that allegation and the charge of removability. The Judge then set the case for a hearing on the issue. There were a line of cases addressing the issue, with arguments for both the government’s position and our position. Matter of Areguillin and Matter of Orozco were the two main cases at that time. Matter of Areguillin held that it’s the “procedural regularity” of the entry which results in “admission”. The Orozco case though held that an entry on someone’s passport, such as our case, cannot be an admission, and thus people in this situation would not be able to adjust to permanent resident status despite an I-601 waiver. Between the Master hearing and the Individual Hearing, the Board of Immigration Appeals issued an interim decision, Matter of Quilantan, which was on point with our case. It reaffirmed Areguillin in that procedural regularity is all that’s needed to be admitted in a particular status, and not the substance of the entry. Thus, someone who entered through customs, was questioned, inspected, and eventually let in despite a fake passport is considered “admitted”. Prior to the scheduled hearing, we submitted documents to Court and to the government pertaining to our position that our client is in fact admitted and thus, with the waiver of inadmissibility granted despite our client’s fraudulent entry, should be eligible to to apply for permanent residency. At the hearing itself, we had a pre-hearing discussion with the government in which of Matter of Quilantan was discussed. The government agreed with our position and decided to terminate the case without even going through a hearing. The Immigration Judge discussed the issues and eventually terminated removal proceedings for our client. Jurisdiction for his green card application now goes back to the USCIS in Columbus, Ohio, where his green card should be issued soon.