Man naturalized after 7 year immigration court battle

Mr. Fu was put in deportation proceeding in 2000 at his N-400 interview after the INS found that he failed to disclose in his 1995 visa interview the fact that his father, petitioner for his immigration, had died in 1993. Under the law, if petitioner is deceased, the approved petition is automatically revoked by the operation of the law. INS alleged fraud in obtaining immigrant visa. Later INS changed the charge to entry without a valid visa under section 212(a)(7)(A)(i)(I) of the INA.

The case was tried before San Francisco immigration judge Robert Yeargin in 2005. Mr. Fu applied for a waiver under section 237(a)(1)(H) of the INA. The government argued that because Mr. Fu was not charged with fraud, he was not eligible for waiver under this section. Judge Yeargin agreed with the government and denied Mr. Fu's waiver application.

Upon appeal, the BIA found that section 237(a)(1)(H) of the INA "is best interpreted as authorizing a waiver of removability under section 237(a)(1)(A) based on charges of inadmissibility at the time of entry under section 212(a)(7)(A)(i)(I) of the Act, as well as under section 212(a)(6)(C)(i), where there was a misrepresentation made at the time of admission, whether innocent or not". 23 I&N Dec. 985(BIA 2006), Interim Decision 3539(published). Under this interpretation, Mr. Fu is found eligible for a waiver and the case was remanded for the judge to consider the waiver.

Upon remand, judge Yeargin granted relief and Mr. Fu received his green card back. We advised Mr. Fu to file N-400 in June, 2007. Mr. Fu just received his oath ceremony notice and he will take the oath on December 4, 2007.

BIA decision in this case was published and is a precedent binding on all similar cases in the United States.

To view the BIA decision, please go to the following link.
http://www.usdoj.gov/eoir/vll/intdec/vol23/3539.pdf