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IMMIGRATION SEPTEMBER 20, 2024 | The Indian Eye 44
237(a)(1)(H) Waiver After Denial
of Naturalization Application?
BY CYRUS D. MEHTA tion in exchange for receiving Although in the asylum appli- as she had stated in her asylum employer as well as travel in and
voluntary departure from the cation she had claimed to be application. The examiner also out of the US. And herein lies
t the naturalization in- Immigration Judge and the a member of a political party questions the client for not ad- the paradox. If the USCIS is-
terview the noncitizen asylum application was never that resulted in her arrest for mitting that she had been ar- sues a Notice to Appear (NTA)
Aapplicant could face a adjudicated on its merits, leave political reasons, the noncitizen rested. The attorney is caught and places the client in removal
rude shock if the examiner re- alone reviewed by the judge failed to indicate in the I-485 by surprise and asks for a short proceedings, it will benefit her
veals that they made a misrep- or the government opposing application that she had ever break to speak to the client. The as she will be eligible for a waiv-
resentation in a long forgotten counsel. The noncitizen timely been a member of a political client confesses to the attorney er under INA § 237(a)(1)(H),
application for an immigration left the US timely under volun- party or that she had been ar- that she vaguely remembers that which provides:
benefit filed in the distant past. tary departure, and a few years rested. On the other hand, the she was mislead into filing a fab- Waiver authorized for cer-
For example, the applicant later, came to the US in H-1B noncitizen disclosed in the I-485 ricated asylum application, but tain misrepresentations. The
could have been misled by an status and ultimately obtained application that she had been she did not think much about provisions of this paragraph
unauthorized practitioner when permanent residence through placed in removal proceed- it, as she withdrew the asylum relating to the removal of aliens
she first came to the US three the employer who filed a labor ings and had left the US pur- application before an IJ in ex- within the United States on the
decades back in filing a fabricat- certification, an I-140 petition suant to voluntary departure. change for voluntary departure. ground that they were inadmis-
ed asylum application who did and subsequently an I-485 ad- This individual retains an The attorney explains all sible at the time of admission
not inform her about the asylum justment of status application. immigration attorney who in of this to the naturalization ex- as aliens described in Section
interview. This ultimately result- At the time of filing the good faith prepares and files the aminer after conversing with his 1182(a)(6)(C)(i) of this title,
ed in the issuance of a Notice to I-485 application the noncit- N-400 application. The attorney client. The examiner believes whether willful or innocent,
Appear resulting in the appli- izen failed to mention in the inquired about how his client that if the client had filed a false may, in the discretion of the At-
cant being placed in a removal I-485 application that she had obtained permanent residency asylum application, she should torney General, be waived for
proceeding. At the Master Cal- made a misrepresentation to and is satisfied with the expla- have disclosed that she had any alien (other than an alien
endar Hearing the noncitizen obtain an immigration benefit nation from the client that she sought an immigration benefit described in paragraph (4)(D))
withdrew the asylum applica- through the asylum application. was sponsored by her employer by lying in her I-485 applica- who–
through a bona fide labor tion and should have sought a (I) is the spouse, par-
certification, I-140 peti- waiver under INA § 212(i) prior ent, son, or daughter of a
tion and I-485 application. to adjusting status and obtain- citizen of the United States
The client desires that the ing permanent residence. The or of an alien lawfully admit-
N-400 application be filed attorney argues that his client ted to the United States for
quickly so that she can be- withdrew the application under permanent residence; and
come a US citizen in time the supervision of the Immigra- (II) was in possession of
to vote in the presidential tion Judge who granted her vol- an immigrant visa or equivalent
election and indicates to untary departure. She was also document and was otherwise
her attorney that it would misled into filing this asylum admissible to the United States
not be necessary to file a application. at the time of such admission
request for her records un- Notwithstanding the attor- except for those grounds of in-
der the Freedom of Infor- ney’s pleas on behalf of his cli- admissibility specified under
mation Act. When prepar- ent, the USCIS issued a denial paragraphs (5)(A) and (7)(A)
ing the N-400 application, of the N-400 application on the of section 1182(a) of this title
the attorney disclosed that ground that she had not met all which were a direct result of that
his client had been placed the requirements for naturaliza- fraud or misrepresentation. OR
in removal proceedings, tion including having been law- is a VAWA self-petitioner.
but relying in good faith fully admitted for permanent A waiver of removal for
on what his client told him, residence under INA §316. The fraud or misrepresentation
he did not acknowledge client appealed the denial by fil- granted under this subpara-
in the N-400 that his cli- ing Form N-336, and a more se- graph shall also operate to
m of ent gave any information nior naturalization officer again waive removal based on the
CYRUS D. MEHTA & PARTNERS PLLC that was false, fraudulent affirmed the original denial. grounds of inadmissibility di-
or misleading or had lied
Although the USCIS as-
rectly resulting from such fraud
to a government official serted that the client has not or misrepresentation.
to obtain an immigration been lawfully admitted for per- A noncitizen in removal
benefit. manent residence, she sill tech- proceedings may apply for this
At the naturalization nically remains a permanent waiver under INA § 237(a)(1)
interview, the examiner resident until she is subject to a (H) after being inadmissible for
goes through the questions final order of removal. She can fraud or willful misrepresen-
on the N-400 and then con- continue to remain in the US as tation under INA § 212(a)(6)
fronts the client for not ad- a permanent resident as well as (C)(i). The waiver would apply
2 6th Floor mitting that she had been a use the I-551 card if she needs whether the noncitizen filed at
member of a political party to verify her status with a new application for an immigrant
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