BIA: LPR Who Obtained Status Through Fraud or Misrepresentation Not Eligible for LPR Cancellation (In re Kolomatangi)

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA: LPR WHO OBTAINED STATUS THROUGH FRAUD OR MISREPRESENTATION NOT ELIGIBLE FOR LPR CANCELLATION (IN RE KOLOMATANGI)
Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

The Board of Immigration Appeals has ruled in a precedent decision that an immigrant who obtained lawful permanent resident status through fraud or misrepresentation is not eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act. The BIA found that the respondent was never "lawfully admitted for permanent residence" and therefore did not qualify for LPR cancellation.

The respondent in this case, a Mr. Koloamatangi, obtained LPR status in 1985 on the basis of his purported marriage to a U.S. citizen. However, the BIA found that the marriage was knowingly invalid, because Kolomatangi was married to someone else at the time. When he was subsequently placed in removal proceedings, he sought to apply for cancellation of removal under INA sec. 240A(a). This relief is available to immigrants who have been "lawfully admitted for permanent residence for not less than five years," have resided continuously in the U.S. for at least seven years after any admission, and have not been convicted of an aggravated felony.

At Kolomatangi's removal hearing, the immigration judge determined that, although Kolomatangi was granted LPR status and subsequently resided in the U.S. for more than the requisite five years, he was not eligible for relief under the statute because his LPR status was obtained through fraud. The IJ also denied Kolomatangi's request for voluntary departure because of the fraud. The IJ indicated that he would consider a motion to reopen by Kolomatangi to apply for non-LPR cancellation of removal. However, the IJ also stated that he would likely find Kolomatangi ineligible for this relief as well, for lacking good moral character. Kolomatangi appealed the IJ's decision to the BIA. In 2001 the appeal was summarily dismissed because Kolomatangi had failed to file a written brief. However, he then filed a motion to reopen, explaining the failure to file a brief and seeking to submit an appellate brief. The BIA granted this motion and ruled on the appeal.

On appeal, Kolomatangi relied on 8 CFR sec. 1.1(p) to argue that he should be eligible for LPR cancellation. That regulation repeats the statutory definition of "lawfully admitted for permanent residence" (found at INA sec. 101(a)(20))- i.e., "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." However, since 1996 the regulation also has included the following sentence: "Such status terminates upon entry of a final administrative order of exclusion or deportation." Based on this last sentence, Kolomatangi argued that he should be considered an LPR because he was granted the status and did not have a final order terminating it entered against him.

The BIA rejected this argument, noting longstanding precedent that an individual who obtains LPR status through fraud or misrepresentation "has not made a lawful entry upon which to base eligibility for relief" (citing Matter of T-, 6 I. & N. Dec. 136 (BIA, AG 1954)). The BIA noted that the 1996 amendment to the regulation was intended to limit eligibility for motions to reopen to individuals whose LPR status had been terminated by means of administratively final orders. The BIA concluded that this provision did not change the longstanding principle "that an alien was not 'lawfully' admitted for permanent resident status if, at the time such status was accorded, he or she was not entitled to it."

The BIA remanded the case to the IJ to determine whether Kolomatangi is eligible for a waiver under INA sec. 237(a)(1)(H) based on the fact that he has a U.S. citizen child, or for non-LPR cancellation of removal.

In re Kolomatangi, 23 I. & N. Dec. 548, Int. Dec. 3486 (BIA Jan. 8, 2003).