Matter of Bador, 28 I&N Dec. 638 (BIA 2022)

Matter of Bador, 28 I&N Dec. 638 (BIA 2022)

(1) A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition, a reason separate and independent from fraud. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), aff’d Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996), reaffirmed.

(2) A section 237(a)(1)(H) fraud waiver cannot be used in place of, or in conjunction with, a “good faith” waiver under section 216(c)(4)(B) of the INA, 8 U.S.C. § 1186a(c)(4)(B) (2018), to waive the requirement to file a joint petition to remove conditions on residence under section 216 of the INA, 8 U.S.C. § 1186a.

"In conclusion, we agree with the Immigration Judge that the respondent has not met his burden of establishing that a fraud waiver under section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), waives his removability under 237(a)(1)(D)(i). We additionally agree with the Immigration Judge that a “good faith” waiver of the joint filing requirement is not warranted under section 216(c)(4)(B) of the INA, 8 U.S.C. § 1186a(c)(4)(B), and the respondent may not use a fraud waiver under section 237(a)(1)(H) in place of, or in conjunction with, a “good faith” waiver. Because the respondent is removable as charged and he has not shown that he is eligible for relief from removal, his appeal will be dismissed."