IMMIGRATION AND NATURALIZATION SERVICE v. YUEH-SHAIO YANG
Yueh-Shaio Yang and his wife, former Taiwan residents, executed elaborate fraudulent schemes to gain entry to the United States and, later, to obtain Yang's citizenship. While Yang's naturalization application was pending, the Immigration and Naturalization Service (INS) learned of his unlawful entry and issued an order to show cause why he should not be deported at the time of entry. Yang conceded that he was deportable and filed a request for a waiver of deportation under the Immigration and Nationality Act with the Attorney General. An Immigration Judge denied Yang's request. In affirming, the Board of Immigration Appeals found that Yang was statutorily eligible for a waiver, but denied it as a matter of discretion. In vacating, the Court of Appeals held that the Board had abused its discretion by considering the adverse factors of Yang's participation in his wife's fraudulent entry and, secondly, his fraudulent naturalization application. The court reasoned that Yang's actions in his wife's fraudulent entry were "inextricably intertwined" with his own efforts to secure entry and must be considered part of the initial fraud, while his application must be considered an "extension" of that initial fraud.
May the Imigration and Naturalization Service, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act, take into account acts of fraud committed by an alien in connection to his entry into the United States?
Legal provision: Immigration and Naturalization, Immigration, Nationality, or Illegal Immigration Reform and Immigrant Responsibility Acts, as amended
Yes. In a unanimous decision, authored by Justice Antonin Scalia, the Court ruled that in deciding whether to grant a waiver under the Immigration and Nationality Act, the Attorney General or her delegate, the Immigration and Naturalization Service, may take into account acts of fraud committed by the alien in connection to his entry into the United States. Justice Scalia wrote, the Act "imposes no limitations on the factors that the INS may consider in determining who, among the class of eligible aliens, should be granted relief."
Argument of Beth S. Brinkmann
Chief Justice Rehnquist: We'll hear argument next in Number 95-938, Immigration & Naturalization Service v. Yueh-Shaio Yang.
Ms. Brinkmann, you may proceed.
Mr. Brinkmann: Thank you, Your Honor.
Mr. Chief Justice and may it please the Court:
This case involves respondent's request for a waiver of deportation under section 241(a)(1)(H) of the Immigration and Nationality Act.
The act commits that decision to the discretion of the Attorney General.
Exercising her discretion in this case, the Attorney General properly considered numerous frauds committed by respondent, including his fraudulent application for naturalization, fraudulent marriages, fraudulent divorce, and his participation in the fraudulent obtaining of documents for his wife's fraudulent entry into the country.
The Attorney General did not, again as a matter of discretion, consider the fraud respondent committed at entry.
Unknown Speaker: I take it under the statute, the Attorney General would have been perfectly free to consider that fraud.
Mr. Brinkmann: That's correct, Your Honor, and in fact the Seventh Circuit has expressly recognized that.
In Rodriguez-Barajas, Judge Easterbrook explained that the Attorney General's under no compulsion to disregard that initial fraud, and that any limitation on that has arisen out of the Attorney General's exercise of her discretion.
Unknown Speaker: Well, you think, then, that the statute places no outer limits whatever on the discretion of the Attorney General?
If the Attorney General took the position that the fact of a fraudulent entry by the alien is a factor weighing against waiver, then nobody would be entitled to a waiver any time.
Mr. Brinkmann: Well, Your Honor--
Unknown Speaker: I mean, that condition exists in every one of these cases.
Mr. Brinkmann: --That's correct, Your Honor.
The aliens that are in the pool of eligible aliens for this type of waiver share several common characteristics.
They all have three factors weighing in their favor.
They have to be the relative... the parent, son or daughter or spouse of a citizen or a permanent resident alien.
They also must have presented themselves for entry.
They have to have a validly, facially valid document, and they have to be otherwise admissible.
They also share the fact--
Unknown Speaker: But for the fraud.
Mr. Brinkmann: --Yes.
They also share the fact that they all committed entry fraud.
Now, looking at that pool of applicants, the Attorney General has to decide who amongst that she should exercise her discretion to give a waiver to, and our submission is that it's certainly proper for the Attorney General to favor a person who has been law-abiding since their initial entry over someone who's perpetrated a series of frauds.
We would also submit, Your Honor, although it has not come up in the typical kinds of cases that have come before the board, if, for example, the entry fraud was intertwined with violence, for example, we certainly think the Attorney General in her discretion could take that into account.
Unknown Speaker: Well, could take into account the circumstances of the particular fraudulent entry.
Mr. Brinkmann: Yes, Your Honor.
Unknown Speaker: But not the mere fact that there had been a fraudulent entry, I take it?
Mr. Brinkmann: I'd look to the... for example, the Court in the Rios-Pineda case, when the Court was looking at the Attorney General's authority whether or not to grant suspension of deportation there, I think characterizes looking to the nature and severity of the factor, so I would think that that would clearly be appropriate for the Attorney General to take into account.
Unknown Speaker: Well, just because Congress has given the Attorney General the power to waive fraud, certainly you don't concede that the Attorney General couldn't say, I have the power but I decline to waive any kind of fraud.
Mr. Brinkmann: That's correct, Your Honor.
In fact, particularly in the immigration context there may be other matters of foreign affairs or international relations that at a particular point in time the Attorney General would choose not to exercise her discretion in favor of waivers under this provision.
Unknown Speaker: The statute does circumscribe discretion in one respect, does it not, or perhaps not, because the sentence is difficult.
The last sentence of sub (H), a waiver of deportation for fraud granted under this subparagraph shall also operate to waive deportation based on the grounds of inadmissibility at entry.
What's the function of that sentence, other than to circumscribe or control the discretion of the AG?
Maybe you'll tell me--
Mr. Brinkmann: If I under--
Unknown Speaker: --it's an interpretation of the discretion once exercised.
Mr. Brinkmann: --I think, if I understand your question correctly, Your Honor, it's clarifying some confusion that had existed under their previous provision, and it makes clear that if the Attorney General grants a waiver of deportation under this provision, that waiver of deportation waived the grounds of inadmissibility for the fraud and also for inadmissibility grounds that directly result from that, that being a fraudulent visa or fraudulent labor certification.
Unknown Speaker: Would that be relevant in a later application for citizenship, or something like that?
Is that why it's important?
Mr. Brinkmann: Well, in fact--
Unknown Speaker: Because it seems to me to just restate that a waiver's a waiver.
Mr. Brinkmann: --Well, Your Honor, I think I can give an example to explain it.
There is some fraud at entry that doesn't involve fraudulent documents or labor certificates.
Misrepresenting your marital status, perhaps, in an interview.
Some people obtain their visas based on false information at a consulate beforehand, and then when they arrive at the port of entry, they continue to stand by what's in that visa, but perhaps they've been unmarried... they've been divorced or married in the meantime, so they would be committing a fraud at entry, but that would not necessarily relate to any fraudulent document.
If they had an independently based fraudulent document, that could be a ground of inadmissibility, and it would not be waived because it would not directly result from their fraud, and I think what the statute was trying to get at was that any of the grounds of inadmissibility at the time of entry that directly result from the entry fraud are also waived.
Unknown Speaker: May I--
--But then that is a narrowing of the Attorney General's discretion.
Mr. Brinkmann: No.
We would simply say that describes what the effect of the grant of the waiver is.
The Attorney General grants a waiver, and it specifies that it waives deportation based on those grounds.
That's what the effect of a 241(a)(1)(H) waiver--
Unknown Speaker: Well, it circumscribes the Attorney General to some extent in that it does control the extent of the waiver.
Mr. Brinkmann: --The effect of it, yes, Your Honor.
On the other hand, we would submit that as in my previous discussion of how the Attorney General could take into account the nature and severity of the initial fraud, the Attorney General certainly also as matter of discretion could take into account the nature and severity of the other grounds of inadmissibility on the fraudulent labor certificate or visa, the means by which that was procured.
Unknown Speaker: I have to confess I'm still a little puzzled about your answer to Justice O'Connor.
I understood you to say that the Attorney General could not take into account the mere existence of some fraud, could take into account the nature of the fraud, but are you saying that if... say there's the mildest kind of form in the... fraud in the world, that the mere fact there was a fraud could not be taken into consideration?
Mr. Brinkmann: No, I'm sorry, I misspoke if I--
Unknown Speaker: No matter how mild it is, the Attorney General has discretion.
Mr. Brinkmann: --That's--
Unknown Speaker: Otherwise, it seems to me a person could commit a fraud and then claim a right to remain.
Mr. Brinkmann: --That's right, and in fact, Your Honor, one of the ironies of the Ninth Circuit's ruling in this case is, it really gives the type of open-ended immunity to aliens who enter by fraud.
By requiring that later frauds be considered as a part of or an extension of the entry fraud, those aliens are put at an advantage over an alien who enters lawfully and then commits later fraud which is not forgiven.
Unknown Speaker: But are you saying that the Attorney General would be within her discretion to say, I will never exercise my discretion to waive entry fraud?
Mr. Brinkmann: We believe that if that were based on a reasonable exercise of her discretion--
Unknown Speaker: No, but that begs the question.
The only fact you know is that she says, I'm adopting a policy.
I will never exercise discretion, no matter what the circumstances, to waive entry fraud.
Would that be lawful or not?
Mr. Brinkmann: --Yes, Your Honor, we believe it would be.
I guess in my initial answer I was trying to think of an example in which that might be the case, and I come back to the example of perhaps there are other immigration interests and other quotas that are so... so important, and as a matter of policy--
Unknown Speaker: No, but my question suggested that that was her across-the-board policy for all cases in which the statute might be applied.
I'm not asking a question about subclasses.
I'm talking about the entire class of possible waivers, and construed that broadly, would it be within her discretion to say, I will never exercise my discretion in favor of waiver?
Mr. Brinkmann: --You mean waivers under 241(a)(1)(H)?
Unknown Speaker: Yes.
Mr. Brinkmann: Yes, Your Honor, we believe it would be.
Unknown Speaker: But in any event, the BIA has adopted a different standard, right?
Mr. Brinkmann: That's correct, Your Honor.
Unknown Speaker: And unless that standard is changed, I assume the Government would abide by the standard--
Mr. Brinkmann: That's--
Unknown Speaker: --that's been adopted.
Mr. Brinkmann: --That's correct, Your Honor.
Unknown Speaker: Is that right?
Mr. Brinkmann: That's correct, and it's a reasonable approach.
I think the board has found that the cases that have come before it, that entry fraud does seem to be of a common ilk, and has decided to treat like cases alike in that regard, and need not look at that initial factor.
As I mentioned earlier, if a case arose in which a different type of entry fraud was involved involving violence, for example, we believe that would be certainly something which the board may very well--
Unknown Speaker: But do you say you're free to depart from that rule and that practice at any time you want?
Mr. Brinkmann: --Yes, Your Honor, I think to the extent that--
Unknown Speaker: For no reason at all?
Mr. Brinkmann: --I think to the extent that there is judicial review for abuse of discretion the board would be well advised to provide a reason.
I have to hasten... have to... have to be quick to add at this point, Your Honor, at this point it's somewhat of a limited query, because the new statute that was passed a week and a half ago eliminates judicial review of the Attorney General's exercise of discretion under this provision.
Unknown Speaker: But currently, do I understand it correct... I must say, I was quite surprised to discover this, but the situation is, if you commit entry fraud and are successful, so long as you don't commit any other fraud, you're okay.
Is that the current position?
Mr. Brinkmann: You're eligible for a waiver.
That doesn't mean you get it, Your Honor.
At that point you can apply to the Attorney General.
You have to be a relative--
Unknown Speaker: Well, you may not get it, but you won't be denied it simply because you got in fraudulently.
Mr. Brinkmann: --It will... when the Attorney General, the Board of Immigration Appeals, the immigration judge exercise their discretion, the practice at this point is not to take into account the initial entry fraud.
Unknown Speaker: I find that extraordinary, myself.
No matter how severe--
Why is that?
Mr. Brinkmann: The fact of the matter is, Your Honors, when I've looked through all the cases, the typical case that has come forward involves very similar types of fraud, mainly people misrepresenting the fact they've been married, or been divorced, family relations.
There have not been cases which involve incidences of violence, for example, and--
Unknown Speaker: Well, why is it that in those kinds of cases... why does the BIA disregard that fraud?
Mr. Brinkmann: --Well, to an extent, Your Honor, I think that it's taken as a matter of treating like cases alike, and that that's--
Unknown Speaker: Well, you could treat like cases alike and say we'll... we will not disregard it in any of them.
Mr. Brinkmann: --Right, and that's what the alien's coming forward to, as asking for forgiveness for, as the board has characterized it.
Unknown Speaker: Ms. Brinkmann, there was one time when this kind of waiver for initial entry fraud was mandatory.
Mr. Brinkmann: Yes.
Unknown Speaker: And then it was urged that Congress drop it altogether.
Instead, Congress came up with something in between.
They said the entry by fraud may, in the discretion of the Attorney General, be waived, but if you can respond to the question that's been raised by several of the justices, why in the first place did Congress provide for initially a mandatory waiver and now a discretionary waiver for one who has gained entry by fraud?
Mr. Brinkmann: Your Honor, initially, this was enacted as section 7 of the Immigration Act in 1957, and it was responding to entry by... immigrants were fleeing repression in totalitarian regimes, and had made misrepresentations in order to avoid repression, and that's when the provision was first enacted, added to the statute.
Then it was somewhat modified in 1961.
In between 1961 and 1981, that's when all the trouble and confusion started occurring, and that's what prompted Congress in 1981, or the proposals pending in Congress, to eliminate it altogether because it had caused such confusion.
For example, persons who entered by an innocent misrepresentation some courts had held were not eligible for the waiver, whereas aliens who had entered through fraudulent misrepresentations were.
That's something that the 1981 statute... amendment corrected.
It also, of course, made it discretionary.
It also made it clear, for example, that it was not going to waive deportation for aliens who entered without inspection.
Unknown Speaker: --policy by discretion of the executive is that anyone who commits fraud successfully upon entry is okay.
Mr. Brinkmann: --I wouldn't say it's okay, Your Honor, but it's enough like all of the other cases that have come before the board that it's a wash, and that the board look, and the immigration judges look at the other factors that underlie the interest in the stat... this provision--
Unknown Speaker: You get in under the provision of the law that says a spouse can get in, and you lie.
You say I'm married to somebody.
You are in fact not married to somebody.
So long as you persuade the officer of the truth of that lie, it's okay.
Once you're in, it's all right.
That's the policy we now have in place.
Mr. Brinkmann: --Right.
Well, it dates back to 1978, Your Honor.
There's a similar provision for waiver of exclusion grounds, and that's when the Commissioner of INS first articulated this.
Unknown Speaker: Well, I thought we were going to get serious about... about enforcing our borders, and I was really quite surprised to find that that's the policy.
Mr. Brinkmann: Well, Your Honor, I have to say I think that in light of the statute that was recently passed, that Your Honor... certainly it's a situation I think now where Congress has eliminated this provision from judicial review, and the--
Unknown Speaker: Well, that doesn't save anything.
The Attorney General can continue to let everybody in who's lied successfully, and there's no judicial review.
It may make it worse.
Mr. Brinkmann: --I would hasten to add, Your Honor, I mean, this waiver of deportation does apply to a limited pool of people.
It applies to people who are immediate relatives of U.S. citizens, or permanent resident aliens, and the main thrust behind this provision was for family unification, as I initially pointed out to Justice Ginsburg, in '57, it had to do with the nature of countries that aliens were fleeing, but the real interest--
Unknown Speaker: Do they have to now be an immediate relative?
Mr. Brinkmann: --Yes.
Unknown Speaker: I mean, suppose they lied when they came in and they said they were an immediate relative.
Mr. Brinkmann: They have to be one.
That's a statutory eligibility--
Unknown Speaker: They have to be one now.
Mr. Brinkmann: --At the time of the application for the waiver and the grant of the waiver, yes, Your Honor, and that was really the interest underlying, so although I think at first blush it may sound frivolous to permit people who have lied or misrepresented, I think that Congress really envisioned an overriding interest in the unification of families.
Unknown Speaker: Your position here, I take it, Ms. Brinkmann, is that although the Attorney General has exercised her discretion in this manner to forgive entry fraud, that she has control of just what that means, and it shouldn't be expanded by the courts.
Mr. Brinkmann: That's right, Your Honor.
Unknown Speaker: Well, but on the other hand, I take it that you're saying that what the Attorney General's position has been, which is to overlook the initial fraud, is suggested if not compelled by the statutory history.
Isn't that what you're saying?
Mr. Brinkmann: We don't believe that it is compelled by that, Your Honor, no.
We think that to the extent the Ninth Circuit authority can be read that way, they're clearly wrong.
We agree with Judge Easterbrook's opinion in the Seventh Circuit, which states that their statute imposes no compulsion on the Attorney General to disregard that initial fraud.
That simply is one of the eligibility requirements.
That's one of the factors I described earlier that all the aliens in the applicant pool have in common.
Unknown Speaker: Well, that would make a lot of sense to me but for the way the Attorney General has administered the statute to date.
I can't understand where it gets... where that policy derives from, and I thought your earlier remarks indicated it derived from the statutory history.
Mr. Brinkmann: No, I think it actually derives from the history before the agency itself, Your Honor.
As I explained, it actually piggybacks on an interpretation of waiver for exclusion under section 212(i) in 1978.
The Commissioner of the INS set forth this policy and that's what eventually was incorporated into the Attorney General's interpretation of the deportation waiver.
When that first statement was made about the exclusion waiver, the deportation waiver was not yet discretionary.
It was mandatory.
The exclusion waiver has always been discretionary, so once the deportation waiver became discretionary in 1981, and the Attorney General came to start interpreting that, she looked back to the interpretation that had been given to the exclusion waiver that was always discretionary.
Unknown Speaker: Am I right, I thought... I might not be, but I... my reading of this was initially there were a group of people who did lie when they wanted to come in, particularly people who came from Iron Curtain countries, and they lied about what country they were coming from because they were afraid that they'd be sent back and killed possibly, and Congress initially passed this statute because it wanted to say that people like that who had families here should be permitted to stay here.
Mr. Brinkmann: Yes, Your Honor.
Unknown Speaker: And if that's so, then wouldn't it raise a legal question if the Attorney General said people just like that, or who tell equivalent lies to that, would all have to go back?
That's why I wonder if there isn't some limitation arising out of the circumstances in this, where the history of this, that there were certain lies that would be told and the need to reunite families was such that that would be a limitation on the AG's discretion.
Mr. Brinkmann: We don't believe so, Your Honor.
I think looking at the text of this statute following the 1981 amendment, Congress was clear to write that the deportation may be waived in the discretion of the Attorney General.
Unknown Speaker: Regardless of the history, what the statute does is give the Attorney General discretion.
That's what it says.
Mr. Brinkmann: That's right, Your Honor.
I think particularly against the backdrop of the history in 1981, where there had been proposals to eliminate it altogether.
Also, I would add, Congress did set out the statutory eligibility requirements we've already discussed, and did not include any other even factors to consider in many provisions of the Immigration Nationality Act.
For example, Congress has told the Attorney General specifically to consider hardship to family members and all that.
This waiver provision contains none of that, and we think that bolsters our interpretation that it's left to the sole discretion of the Attorney General.
Unknown Speaker: Ms. Brinkmann, may I go to the other end of the spectrum and make sure I understand you on one point, and that is, I understand you to have said that the policy of waiving any initial fraud applies to any initial fraud regardless of what it's circumstances may be.
In other words, there's no minor fraud versus major fraud.
All frauds are equal if they are initial fraud, initial entry frauds, is that right?
Mr. Brinkmann: It's difficult to answer that question, Your Honor, because the cases all have very comparable types of fraud.
There just haven't been--
Unknown Speaker: All right, what if you had a fraud case in which you... it was shown that the documents were procured by the entrant by holding a gun to the head of officials in foreign countries to force them to produce the fraudulent documents, would that be like all other kinds of frauds?
Would that be within the policy of waiving all initial entry frauds?
Mr. Brinkmann: --I think that would be within... it would be within the discretion of the Attorney General, her delegates, to decide.
Unknown Speaker: No, but I want to know what her policy... I just want to understand what her policy is now, and would that fall within her policy of waiving initial entry fraud as you understand it?
Mr. Brinkmann: That case simply has not come up, Your Honor, and I would not want to say that it would come within that, because I think that--
Unknown Speaker: So maybe not all frauds are equal for... initial entry frauds are equal.
Mr. Brinkmann: --They may not be, Your Honor.
Unknown Speaker: Okay.
Mr. Brinkmann: I think that's true, and I think the Attorney General would be free to change her policy and explain that in the future any entry frauds that have to do with violence certainly are going to be weighed much more severely, in fact--
Unknown Speaker: But that limitation doesn't exist right now.
As far as we know now, and this is what I got from the brief, all entry fraud is not taken into account.
Isn't that the rule as it now exists?
Mr. Brinkmann: --Frankly, Your Honor, we also don't know the other way, because the case just has not arisen, and the Attorney General has not been presented with that situation.
Unknown Speaker: You don't know of a single case of entry fraud that has been taken into account.
Mr. Brinkmann: No, Your Honor, certainly not in the reported cases I've seen.
It might be, Your Honor, because in situations like that, the alien is more than likely going to be not otherwise admissible, will be inadmissible on other grounds.
Unknown Speaker: And there's also a question of what is the entry fraud.
If I understand the way this policy operates, in this case there was a sham divorce in Taiwan before the petitioner entered, and you count that as preentry fraud, so if I understand what the policy is correctly, all of the other... the later frauds postentry were just kind of surplus.
It was enough to be outside this policy that there was a preentry fraud.
Mr. Brinkmann: Your Honor, these are certainly I think a totality of circumstances when the Attorney General exercises her discretion, and any type of misdeed--
Unknown Speaker: Well, I wasn't asking you that.
I may understand her policy incorrectly, but I thought your explanation of the policy was, we will waive entry fraud but nothing before and nothing after, and here there was a before, and now you're saying no, I don't have it right, it's somehow a totality of the circumstances test and not, we'll zero in on the entry itself, I get there and say I'm from... I'm from Austria rather than from Poland.
Mr. Brinkmann: --I'm sorry, Your Honor, I misunderstood.
I wanted to say that the... some misdeed beforehand can certainly be considered.
I just did not want to say that that was dispositive and meant that a waiver could not be granted.
Unknown Speaker: I must say, I don't understand this concept of preentry fraud.
Who is the fraud being committed on?
Mr. Brinkmann: On the United--
Unknown Speaker: --Well--
Mr. Brinkmann: --States, Your Honor.
Unknown Speaker: --But it's only being committed on the United States at the time you present yourself for entry.
Mr. Brinkmann: No, Your Honor--
Unknown Speaker: I mean, surely I can enter into a sham divorce if I want, and until such time as I applied for entry to the United States, it doesn't make any difference to the United States.
Mr. Brinkmann: --Your Honor, respondent collaborated in obtaining fraudulent birth certificates and passports for his wife, and the reason that the divorce and remarriage under an assumed name that he also participated in was to commit a fraud in the United States of America as his wife coming in under the fraud of being a U.S. citizen.
If he had never come to this country--
Unknown Speaker: It was her wife's entry that was the fraud.
It wasn't the--
I mean, it was the wife's entry that he assisted that was fraud.
Mr. Brinkmann: --That's true, and he--
Unknown Speaker: Okay.
Mr. Brinkmann: --Yes.
I also wanted to point out that respondent in the court of appeals agreed with this view and admitted that the naturalization fraud, for example, its fraudulent application could be weighed, and--
Unknown Speaker: There was a fraudulent application for citizenship here too, wasn't there?
Mr. Brinkmann: --I'm sorry, that's what I meant, Your Honor.
Yes, in 1982.
Unknown Speaker: And the Ninth Circuit said that was improperly considered by the Attorney General?
Mr. Brinkmann: Yes, Your Honor.
Unknown Speaker: You advised Justice Scalia that this was a very small class.
I would have thought that numerically it's quite significant.
Do you have any specific numbers as to how small this class is?
Mr. Brinkmann: I actually do have some statistics from the... from fiscal year '95, Your Honor.
I've been informed by... this is from the Executive Office of Immigration Review.
These were decisions on... they classified them as 241(f) waivers, but it's now at 241 (a)(1)(H), and last year there were a total of 30... this was for immigration judge rulings, 37 waivers with a grant rate of approximately 84 percent.
Unknown Speaker: Thank you.
Mr. Brinkmann: Thank you.
Unknown Speaker: Thank you, Ms. Brinkmann.
I take it you want to reserve--
Mr. Brinkmann: I'd like to reserve the rest of my time.
Unknown Speaker: --Mr. Hom.
Am I pronouncing your name correctly?
Argument of Howard Hom
Mr. Hom: That's correct, Your Honor.
Mr. Chief Justice, and may it please the Court:
There are two basic points that we need to address.
Number 1, this case, the facts of this case boils down to just one simple fact.
Mr. Yang's assumed identity as the husband of a United States citizen, just one basic fact.
Secondly, this is not a case of abuse of discretion.
This is a case of statutory construction.
This is a case of statutory construction because the plain language of the statute, the INS's own interpretation, prior case precedents, legislative history, and the policy and the purpose behind this waiver all indicate that the original fraud must never be weighed in the decision to grant or deny a waiver.
Unknown Speaker: As a matter of... you say part of your argument to that effect is based on statutory construction.
Where in the statute do you find that?
Mr. Hom: Yes, it's subparagraph (ii) of 241(a)(1)(H), and the petitioner's brief at page 5a and 6a is the section of law, and in subparagraph (ii) on page 6a it states that the alien was in possession of an immigrant visa or equivalent document and was otherwise admissible, and that's the key phrase, otherwise admissible.
Unknown Speaker: Well--
--Why isn't the key phrase,
"fraud may, in the discretion of the Attorney General, be waived? "
Mr. Hom: Because the purpose of the waiver was to--
Unknown Speaker: We're talking about statutory construction now.
Mr. Hom: --Oh, yes, sir.
Unknown Speaker: Yes.
Mr. Hom: Right.
The waiver serves to take away that fraud.
That's why that phrase, "otherwise admissible", that's what that refers to.
Otherwise, other than the fraud.
Otherwise admissible means other than the fraud that charges or that renders the alien to become excludable.
Unknown Speaker: Well, that sets a condition upon the--
--exercise of discretion... but it does not, it seems to me, to address the substance of what that discretion may consider.
Mr. Hom: If I could answer the question this way, Your Honor, there are three steps in the processing of an application for a waiver before the immigration judge.
The first step is, is there a requisite family relationship, the second step, subparagraph (ii), is the alien otherwise admissible?
In other words, is he a criminal?
Has he committed other heinous acts but he cannot be neither waivered because of the fraud, which is 212(a)(6)(C), and that's what otherwise admissible refers to--
Unknown Speaker: Well, why do you... that isn't at all clear to me.
I mean, why isn't the otherwise... just a threshold requirement, and once you meet that threshold, then you can invoke the Attorney General's discretion, but the statute doesn't say how it should be exercised.
Mr. Hom: --Yes, Your Honor.
Once we reach that threshold that the fraud is taken off the table and not to be considered in order for the alien to apply for the waiver, then for the Immigration Service to turn around and look at that very same act would really nullify subparagraph (ii).
It wouldn't even have to be there at all if the Attorney General had absolute unfettered discretion.
The language of the waiver would merely say, if the alien has a family relationship, then in the discretion of the Attorney General the waiver may be granted, so there must be some meaning--
Unknown Speaker: So you say the fact that Congress has imposed additional conditions over and above the family relationships actually limits the Attorney General's discretion.
That seems rather strange.
Mr. Hom: --And that's why I say, it's not a matter of discretion, Your Honor, it's really a matter of statutory construction.
Subparagraph (ii) takes--
Unknown Speaker: But construing the statute, mustn't we take into account first the words that say
"may, in the discretion of the Attorney General. "
then the history that at one time the waiver was mandatory, and Congress changed it to make it discretionary.
You seem to be... your statutory interpretation argument appears to be based on the pre-1981 statute, when the waiver was mandatory.
Are you saying that Congress... that these words are meaningless?
Mr. Hom: --Your Honor, the change to add the word discretion in 1981 did not change the intent and purpose of the waiver.
Even prior to the 1981 waiver change there was a separate exclusion ground with a parallel waiver, section 212(i), which permitted the Immigration Service to grant a waiver in its discretion for similar types of frauds.
The Immigration Service adopted the position in the parallel deportation waiver in now 241(a)(1)(H) that otherwise admissible means you put aside the initial fraud that renders him excludable in deciding whether or not to grant the waiver, and then the immigration judge, or the Immigration Service, may look at other adverse factors.
For example, if the immigrant had killed somebody to obtain that person's passport, or visa documentation, that would render the immigrant excludable under other acts, sections of the act, so that's the purpose of otherwise admissible, to account for the concern that Your Honors have expressed previously that there may be certain factors in the commission of the fraud that are so heinous that we as human beings would not accept.
Unknown Speaker: Well, so then you're saying otherwise admissible is not important to your interpretation of the act because you've given it this other meaning.
Mr. Hom: I'm not sure if that's--
Unknown Speaker: That's what your whole... I thought your whole case turned on the otherwise admissible language, and you've just given what to me is a very plausible interpretation of it that the man can't be a heinous criminal, et cetera.
Mr. Hom: --Correct, so--
Unknown Speaker: I don't see how that helps your case.
Mr. Hom: --Well, we're saying that if the alien is... in the determination of the waiver we look at other factors other than the fraud factor, which is 212(a)(6)(C), which is not listed there, but you could see the parallel exceptions for (5)(A) and (7)(A) of the statute, so if an alien is encompassed within the grounds of 212(a)(6)(C), 212(a)(5)(A) and (7)(A), those disqualifying factors cannot be held against the immigrant in the determination of the waiver, so the immigration judge is permitted only to look at other factors, other than those three factors.
Unknown Speaker: If that's so, I can understand... just... how you could say may means must in respect to the initial kinds of fraud that led Congress to grant the discretion in the first place, which is what you're arguing now, I think, but assuming for the sake of argument that that's so, how then do you get from the language which talks about a waiver being related... being a direct result of that fraud... it says, that fraud, and that fraud means the fraud that enabled the alien to procure a visa, which this alien procured in 1978.
How do you get from that to saying that the Attorney General cannot take into account her view of a different fraud, i.e., one that happened in 1982 that led to the procurement of naturalization papers?
Even if you're going to say they're all part and parcel of the same thing, I don't see how you escape the language.
Mr. Hom: If we look at the initial language of 241(a)(1)(H) on page 5a, the provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens, described in section 1182(6)(C).
So if you look at the classification described in 212(a)(6)(C), which is on the petitioner's brief at page 2a, the language there states... misrepresentation is the caption... any alien who by fraud or wilfully misrepresenting a material fact seeks to procure or has sought to procure or has procured a visa or other documentation or entry into the United States, those words there clearly show that acts could have occurred not just at the time of entry, but in the past in seeking the visa, or actually having obtained the visa, so it's very clear that the statute that grants the waiver is not limited to acts occurring at the time of entry, Your Honor.
Unknown Speaker: It's not the statute that grants the waiver, it's the statute that makes the immigrant eligible to request a waiver.
Mr. Hom: That's correct, Your Honor.
Unknown Speaker: Yes.
Mr. Hom: And the historical development of the act... of the waiver--
Unknown Speaker: It's still referring to the fraud that led him to have procured the visa.
Mr. Hom: --Well, that's not inconsistent with 212(a)(6)(C).
The statutory language talks and uses words in terms of present tense and past tense, so that those acts which are related to the visa procurement, yes.
If there are other acts not related to the visa procurement, then he would be otherwise inadmissible and the waiver could be denied, so I don't see that as inconsistent with our position, and I think that that should lay to rest a lot of concerns that the waiver is carte blanche to let immigrants come in, commit heinous crimes, and get away with murder.
Unknown Speaker: Mr. Hom, if we looked at it from this point of view, let's say that there's something ambiguous about this, and a judge is trying to determine what the statute means and says, well... let's assume that one person who got into the United States without making any false representations, no fraud, and once in the United States engaged in the very same acts as occurred here, such a person would be deportable, but if in addition to engaging in those acts there had been a fraud at entry, that person is eligible for a waiver.
Mr. Hom: No--
Unknown Speaker: Is that a reasonable way to--
Mr. Hom: --No, Your Honor.
Unknown Speaker: --to construe what Congress did?
Mr. Hom: No, Your Honor.
The waiver that is being... the fraud that is being waived is the fraud to come to the United States.
Frauds that are unrelated that occur afterwards... tax fraud, welfare fraud... all those are separate, independent acts which render the immigrant deportable under different sections of 241(a).
Unknown Speaker: What about the 1982 fraud here, the citizenship?
Mr. Hom: Citizenship, on the application Mr. Yang repeated the same statements, that his wife is Mary Wong--
Unknown Speaker: But he repeated them 4 years later, didn't he?
Mr. Hom: --That's correct, Your Honor.
This is a case of an assumed identity, where the immigrant comes to the United States with a new identity as the husband of Mary Wong, and everything that he does after that is as the husband of Mary Wong.
Unknown Speaker: Well, he's just continuing to make fraudulent representations, then.
Mr. Hom: He repeats the same statement, Your Honor, that he is the husband--
Unknown Speaker: Well, but, you know, I can repeat the same statements to defraud people time after time.
That doesn't mean that all are subsumed under the first one.
Each repetition is a new fraudulent representation.
Mr. Hom: --Well, Your Honor, the... the INS has always interpreted the waiver to waive the conditions of the fraud, and until this case there has never been a slicing up of the fraud into subcomponents.
Unknown Speaker: Well, but the INS didn't interpret it this way in this case.
Mr. Hom: That's--
Unknown Speaker: So I mean, this was not the Attorney General's view.
This was the view, the Ninth Circuit said the Attorney General has to do this.
Mr. Hom: --The Ninth Circuit looks at Mr. Yang's assumed identity as one fraud rather than individual acts.
Unknown Speaker: And why... where did they get the authority to do that, when the discretion resides in the Attorney General, not the Ninth Circuit?
Mr. Hom: Correct, but the statutory language and the intent of Congress in passing the waiver was to not only help displaced refugees, but there's a subsection that granted the waiver to people with family relations who may not have--
Unknown Speaker: It didn't grant the waiver.
Mr. Hom: --Excuse me.
Unknown Speaker: --It... they could have the threshold, and then the Attorney General may grant the waiver.
Mr. Hom: That's correct, and if... after the threshold is made, the Attorney General looks at other factors other than the fraud, because that is the act for which he is being forgiven for.
Unknown Speaker: But surely the Attorney General can look at a fraud that was committed 4 years after entry.
Mr. Hom: But the--
Unknown Speaker: Can the Attorney General look at a fraud that was committed 4 years after entry?
Mr. Hom: --Only if it is not related to the initial entry.
Unknown Speaker: Well, where do you get that from?
Mr. Hom: The concept of the fraud that exists at the time of entry.
This is the same fraud that exists at the time of entry.
Unknown Speaker: Well, it's the same fraudulent statement, but it's repeated 4 years later.
Mr. Hom: And for the same purpose of his immigration status.
It's not to--
Unknown Speaker: It wasn't to obtain entry, it was to obtain citizenship, so it isn't the same purpose.
Mr. Hom: --Every immigrant, Your Honor, comes to America for the purpose of settling here permanently, and citizenship is the ultimate, is the final step in his process in coming to the United States.
Unknown Speaker: Even on your theory of relationship, how do you relate the misrepresentation about the financial status?
Mr. Hom: Well, that was a matter that the court of appeals remanded back to the immigration judge for redetermination.
Cases have held that false statements to the immigration judge are properly considered in the exercise of discretion.
Unknown Speaker: And you agree with that?
Mr. Hom: The general rule that false statements to the judge--
Unknown Speaker: You agree with that?
You do not contest that general rule?
Mr. Hom: --Statements to the judge, correct.
Unknown Speaker: Mr. Hom, could you help me with the statute here?
I have trouble reading it.
It's on page 5a and 6a of the Government's brief, and the crucial provision, the subsection (ii), Roman (ii), reads, was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A), and 1182(a) of this title, which were a direct result of that fraud or misrepresentation... what is that?
Mr. Hom: Yes.
Unknown Speaker: That requires an antecedent, and I scanned this statute for any prior reference to fraud or misrepresentation, and I can't find any.
Mr. Hom: Yes, what that refers to, Your Honor, is that if the immigrant had applied... you have two situations.
The immigrant applies for his immigrant visa based upon a labor certification, for example, and he... if he properly processed that labor certification, but submitted fraudulent documents, then that is the kind of fraud that directs... directly results from that act.
Unknown Speaker: So you say it should read, except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) which required labor certification.
Mr. Hom: Correct.
Unknown Speaker: And section 1182, which is requirement of a visa.
Mr. Hom: Correct.
Unknown Speaker: Except for those grounds... let's see, which involved fraud or misrepresentation and were a direct result thereof, is how it should have read.
Mr. Hom: I'd like to... I think I hear what Your Honor's saying--
Unknown Speaker: My problem is the word that, a direct result of that.
What fraud or misrepresentation?
There's no fraud or misrepresentation mentioned.
Mr. Hom: --Well--
Unknown Speaker: Isn't it right that that's in (6)(C)?
Mr. Hom: --Correct.
Unknown Speaker: And the reason that it's in (6)(C)... the reason that it's in (6)(C), as I read it, is in the preceding codification the words fraud and representation were at the top of (f), and they were broken out by Congress and moved to (6)(C), and so the antecedent for that is now (6)(C), is that right?
Mr. Hom: --Thank you, Your Honor, but there's also one other aspect of that.
If an immigrant had bought the visa outside of the consular context instead of in the process of applying for an immigration visa--
Unknown Speaker: But is what I said right?
I don't want you to agree if it's not right.
Mr. Hom: --Oh, that's correct, but there's another aspect to it.
There are two explanations.
I was... that's one, and the second one is, where the fraudulent documentation, say the fake passport was a counterfeit that he'd purchased down the street, so it was not part of a fraud to the United States Government.
As Your Honor had pointed out earlier, if he had divorced his wife and had not made that representation or showed that divorce document to the consular officer at his visa interview, then that would not be the kind of fraud that's encompassed and would not be the kind of fraud that would be forgiven by this waiver, so this is not a charter of amnesty.
There are cases of frauds and bad acts that may be punished, and properly so.
There are criminal sanctions that would be available, and once criminal convictions are obtained, then the alien becomes inadmissible under various sections of 212(a), so that the integrity of the immigration system is preserved.
There are not a whole lot of waivers granted under this particular section.
Unknown Speaker: Mr. Hom, there's one problem that I have with your notion that the consistent repetition of the same misrepresentation is a wash.
As long as you say the same thing every time, then it all must be forgiven.
The statements about Mary Wong who was a dead soul, that were repeatedly made on documents signed by these people, were they not indictable crimes as false statements made to the United States?
Mr. Hom: Possibly, but that's the very waiver that is... the reason why the waiver is there.
Unknown Speaker: So what you're saying is that you could have these people engage in repeated criminal conduct and nonetheless the Attorney General must ignore that in determining their eligibility for a waiver.
Mr. Hom: Yes, if the fraudulent conduct relates back to the initial one.
The appropriate solution--
Unknown Speaker: So if there is any ambiguity you say yes, we should interpret Congress to mean that people who have committed in the United States repeated criminal acts nonetheless must be eligible for this waiver.
Mr. Hom: --Incorrect.
The key phrase was eligible for the waiver.
Subparagraph (ii) specifically states that if--
Unknown Speaker: That's what I said, eligible for the waiver.
Mr. Hom: --Right, but he would not be eligible for the waiver because he would have been convicted of crimes involving moral turpitude, which are other grounds enumerated in subparagraph (ii) which are not listed there, but that's what the reference--
Unknown Speaker: So what you say is, although this conduct, signing a false statement, could be indicted, if it's not indicted, it must be treated as if it didn't happen.
Mr. Hom: --Not necessarily indicted.
If there are... if there's an admission that he had committed the elements of the act that involves--
Unknown Speaker: Is there... is... are you denying that Mr. Yang signed papers and presented them to immigration officials saying that he was the husband of Mary Wong, a citizen of the United States?
Mr. Hom: --He did sign those documents, and that's the purpose of the waiver.
Unknown Speaker: And was it not true that at the time he signed those documents Mary Wong was a very dead soul?
Mr. Hom: That's correct.
His wife, Mr. Yang's wife had assumed the identity of Mary Wong.
He did not represent that he was married to a deceased person.
He was saying that his wife, his current wife, who used a new name, and that's why I've been trying to explain that this is a matter of an assumed identity as opposed to a... another type of elaborate fraud, as Your Honors have eluded to.
Unknown Speaker: Well, it seems to me extraordinary that Congress would mandate that the Attorney General not consider what is concededly repeated crimes of false statements to the United States Government.
Mr. Hom: Well, Your Honor, in this case there was one immigration examiner who was indicted and convicted for having received bribes, or soliciting bribes in this respect, and that's in the brief.
If there was criminal acts that could be charged against Mr. Yang, I'm pretty sure that the FBI would have ferreted out those facts--
Unknown Speaker: Well, I've just asked you, did he sign a document in which he said he was the husband of Mary Wong?
Mr. Hom: --Yes, he did, but--
Unknown Speaker: And he could not have been the husband of Mary Wong, as Mary Wong was dead.
Mr. Hom: --That's correct, Your Honor.
If there was evidence to lead to a criminal conviction, one should have been brought, and then he should have been convicted and, if convicted, deported on that basis, and not deported based upon some exception or some misconstruction of a statute that has very salutary purposes behind it just because of potential prosecution.
If there was a prosecution, then he renders himself not to be otherwise admissible within the language of subparagraph (ii) and the person could be deported, so it's not a matter of denying the waiver.
Unknown Speaker: But something he does 4 years afterwards, that wouldn't bear on his admissibility, would it?
Mr. Hom: The waiver focuses on two points.
Number 1, at the time of entry, is he within this classification of having committed this fraud, so he commits this one particular fraud, and he's warranted with it and it becomes an individual part of his new identity... there's just no way he could shake that.
So when the person applies for his social security card he puts down on the form he's married.
When he applies for... when he submits his income tax returns he says he's married, and I'm sure he put down he was married to Mary Wong.
All these are incidental aspects of his having assumed this new identity in coming to America, and not some separate independent fraud that has no relationship.
If he committed other frauds, of tax fraud, for example, then he would be deportable on those independently, and so we're not talking about a denial of a waiver in those cases, but the fact that he's deportable on some other ground.
Unknown Speaker: Well, you're saying, as you've said before during your argument, that he can repeat the same fraud unendingly and there are no consequences to it.
Mr. Hom: And that's the purpose--
Unknown Speaker: And the Attorney General must grant a waiver.
Mr. Hom: --Unless there are other adverse factors, other than that statement, Your Honor.
Unknown Speaker: Just repeating the fraud is not sufficient.
Mr. Hom: That's our position, Your Honor, the same fact.
The purpose of the waiver is not to relieve Mr. Yang of any obligations.
He could still be prosecuted criminally.
His citizenship was denied.
Unknown Speaker: Would you comment on... go back to sort of a basic point of the... the statute in... before its most recent amendment said that the provisions of 241 and so forth and so on shall not apply to an alien otherwise admissible.
Now it says with respect to those, the Attorney General may, in her discretion, waive.
How do you get around the fact that one was a mandatory waiver and the other is a discretionary waiver?
Mr. Hom: At the time there was a mandatory waiver of deportation.
There is also a discretionary waiver for exclusion, and the Immigration Service's interpretation or application of the discretionary waiver was also to disregard the fraud that renders him inadmissible in deciding discretion, so that's the stage that was set when Congress in 1981 passed the new legislation to add on the word discretion for the deportation waiver.
Unknown Speaker: And to take out the words, "shall not apply".
Mr. Hom: --Correct, to make it discretionary, but nevertheless, that did not change Congress' understanding as to the interpretation, the proper application of the statute, because the Immigration Service had consistently in the Alonzo case in 1979, cited in our brief, where the Immigration Service said, yes, frauds--
Unknown Speaker: So the change meant absolutely nothing, in your view.
Mr. Hom: --Relative to the initial fraud, correct.
It would permit the Attorney General to look at other factors, and we see from the discussion this morning that there are other factors that should render an alien inadmissible... excuse me, that should result in the waiver being denied, even though it does not render the alien deportable and inadmissible.
So there are acts which don't amount to a deportable act, but which nevertheless I think we are agreed are reprehensible acts and should be punished with the waiver being denied.
But in this particular case, we have to focus on the family.
The waiver was for the purpose, was designed for the purpose of preserving families.
Unknown Speaker: What you're saying is that under the old statute reprehensible acts that were not sufficiently serious to be an independent ground of deportation could not be taken into consideration.
Mr. Hom: Yes, Your Honor.
Unknown Speaker: That they may now be taken into consideration.
That, you say, is the--
Mr. Hom: Correct.
Unknown Speaker: --is the change.
Mr. Hom: And there are some acts that are so reprehensible that even before the 1981 amendment to make it discretionary--
Unknown Speaker: Yes.
Mr. Hom: --we see that persons who assisted in Nazi persecution or engaged in genocide were not permitted to apply for the waiver, and that was before it was made discretionary, so there were people who covered up their past involvement and came to the United States after World War II, and these people certainly should be thrown out of the country, but because the fraud was being forgiven, the INS had no way to deport those people.
They had the relatives, and the waiver had to be granted.
So Congress in 1978 added on paragraph (4)(D) relating to genocide and said those people, they do such terrible things, they don't even get a chance to talk about a waiver.
Other people on the other hand, U.S. citizens' parents, children, spouses, they have a chance to ask that their loved ones be forgiven so that they may stay in this country, and that's the focus.
It's not to reward bad acts, but to preserve family ties, to consider the feelings of U.S. citizens, and not the alien who committed the fraud.
Unknown Speaker: But I think your opponent agrees that there was... there would have been discretion to decide the case the other way, take into... give a greater weight to the family ties and all the rest.
Am I wrong about that?
Mr. Hom: Well, in the determination of discretion the depth of the family ties certainly would be a factor.
Unknown Speaker: In other words, the Attorney... the Immigration Service could have said, well, I think there were two separate frauds.
The 4-year-later business relating to citizenship, I'll treat that as separate.
Nevertheless, I think these family ties are so strong, and he's such a successful businessman and all these other things, I'm going to grant the waiver.
They could have granted the waiver even if there are two separate frauds.
Mr. Hom: That's correct.
Unknown Speaker: Okay.
Mr. Hom: That's correct.
Unknown Speaker: Thank you, Mr. Hom.
Ms. Brinkmann, you have 3 minutes remaining.
Rebuttal of Beth S. Brinkmann
Mr. Brinkmann: Thank you, Your Honor.
There are two points I'd like to make.
One goes to the separation of these frauds.
It's clear these are separate frauds because they're false statements made for... to obtain different types of benefits, certainly for naturalization.
Unknown Speaker: Let me just interrupt if I may.
Isn't it also true you'd take the same position even if they were the same fraud?
Mr. Brinkmann: That's right, Your Honor.
I just wanted to respond to Justice Ginsburg's concern about the possible criminal prosecution.
It's clear that... well, depending on the actual facts that haven't been fully investigated, that they would have to be for a criminal prosecution.
There are at least three provisions in title 18 that could give rise to criminal prosecution.
1001 for false statements to a U.S. agency, also 1015 having to do with fraud concerning naturalization, and then 1028 has to do with fraud related to identification documents, and depending on the scope of respondent's participation in the purchase of the fraudulent passport and birth certificate, that could also apply.
And in sentencing, Your Honor--
Unknown Speaker: Some of those would also apply to the original fraud in obtaining entry in the first place, right?
Mr. Brinkmann: --That's Your... correct, Your Honor.
Unknown Speaker: So it doesn't prove anything.
You acknowledge that that's waivable.
The later one may be, too.
Mr. Brinkmann: But there's certainly factors that can be taken into account by the Attorney General.
It's not that the Attorney General has to prosecute and imprison people rather than deporting them.
Certainly if they can be taken into account, for example, in sentencing simply uncharged counts can also be taken into account under this waiver provision.
Unknown Speaker: When the Attorney General forgets about this initial fraud as the policy is, he doesn't then prosecute it criminally, I assume.
He both allows the application under this provision and chooses not to prosecute, I take it.
Mr. Brinkmann: I can't speak to that, Your Honor.
I'm not aware of all instances.
The other point I wanted to make had to do with the textual question about otherwise admissible.
The... that term goes to other categories of people that are set forth in section 212 in 1182 as it's codified, of grounds of inadmissibility, excludability.
That has to do with categories that are related to health, to criminal history, stow-aways, smugglers, national security reasons, those are all reasons that statutorily an alien could be inadmissible, and that is what gives meaning to those words, otherwise admissible, in the statute.
Chief Justice Rehnquist: Thank you, Ms. Brinkmann.
The case is submitted.
Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 95-938, INS versus Yang will be announced by Justice Scalia.
Argument of Justice Scalia
Mr. Scalia: This case comes to us on certiorari from the Court of Appeals for the Ninth Circuit.
Respondent, Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People’s Republic of China and subsequently moved to Taiwan.
In order to gain entry to the United States, they executed the following scheme: After divorcing respondent in Taiwan, Hai-Hsia, traveled to the United States in 1978 and using $60,000.00 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wang, a United States citizen.
Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen.
In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization which fraudulently stated that his wife, Mary, was a United States citizen by birth and that respondent had been lawfully admitted for permanent residence.
In 1985, while the respondent’s naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name, as the relative of a daughter who had obtained United States citizenship by then.
The Immigration and Naturalization Service, INS, ultimately learned of the respondents unlawful entry and in 1992 issued an order to show cause why he should not be deported.
Respondent conceited deportability but requested a waiver of deportation under Section 1251(a)(1)(H) of the Immigration and Nationality Act which permits the Attorney General to grant discretionary waivers to relatives of the United States citizens and permanent resident aliens.
The Board of Immigration Appeals denied the discretionary waiver although the Board has a general policy of not taking an alien’s entry fraud into consideration in deciding whether to waive deportation.
It regarded the various fraudulent acts here as going beyond the mere entry fraud in 1978.
The Ninth Circuit granted the respondent’s petition for review and remanded to the Board for a reweighing of the equities without consideration of respondent’s participation in the fraudulent scheme, all of which it said were inexplicably intertwined with his 1978 entry and therefore under the Board’s own policy, could not be considered.
We granted certiorari and we now reverse.
The waiver of deportation statute imposes no limitations on the factors that the Attorney General or her delegates may consider in exercising her discretion to waive deportation.
Although the INS has a policy of refusing to consider entry fraud, that policy is of its own invention and maybe interpreted within reason as it chooses.
The INS has not acted arbitrarily here.
It has rationally chosen to distinguish aliens such as respondent who engage in a pattern of immigration fraud from alien’s who commit a single isolated act of misrepresentation at the time of entry.
Thus, the decision of the Board was lawful and the judgment of the Ninth Circuit must be reversed.
The opinion is unanimous.