NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeal
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2011
Decided October 19, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐1819 Petition for Review of an Order of the Board
of Immigration Appeals
ALBA RODAS DE LINAREZ,
Petitioner, No. AO44‐243‐610
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent.
O R D E R
Alba Rodas de Linarez, a citizen of Honduras, petitions this court to review an order
of the Board of Immigration Appeals upholding an immigration judge’s denial of Rodas’s
request under 8 U.S.C. § 1227(a)(1)(H) to waive removal. The government sought to remove
her because in 1993 she had procured her admission by fraud. The Board upheld the
determination of the IJ that Rodas was not eligible for a waiver because she was not
“otherwise admissible” at the time of admission. Because Rodas was inadmissible for
reasons apart from the 1993 fraud, we deny the petition.
No. 11‐1819 Page 2
Rodas entered the United States as a lawful permanent resident in 1993, after her
then‐husband, a United States citizen, filed a visa petition on her behalf. In her application
for permanent residency, Rodas falsely denied any prior conviction or removal. She, in fact,
had been removed in 1990 after being convicted of altering a passport to gain admission
that same year. In 2007, Rodas sought to renew her lawful permanent residency and
submitted to a biometrics investigation. The Department of Homeland Security discovered
through the biometrics investigation that the INS had removed Rodas from the United
States in 1990 for using the altered passport to gain admission, the crime for which she was
convicted that year.
The Department of Homeland Security initiated removal proceedings before an IJ.
The IJ found Rodas removable on three grounds: prior conviction of a crime involving
moral turpitude (her 1990 conviction for “passport fraud”), 8 U.S.C. § 1182(a)(2)(A);
applying for admission within five years of removal without permission of the Attorney
General, id. § 1182(a)(6)(B) (1990); and misrepresenting a material fact on her 1993
application for an immigrant visa (her “application fraud”), id. § 1182(a)(6)(C). Rodas
argued that she was eligible for a waiver of her removal under 8 U.S.C. § 1227(a)(1)(H). That
provision empowers the Attorney General to waive removal for immigrants who commit
fraud in order to gain admission to the United States, if the immigrant is “otherwise
admissible” and has a qualifying relative, such as a spouse. The IJ denied the waiver.
Putting to one side her 1993 application fraud, the IJ reasoned that Rodas’s prior conviction
in 1990 for using an altered passport and her application for reentry without permission of
the Attorney General made Rodas “otherwise inadmissible” and therefore ineligible for a
§ 1227(a)(1)(H) waiver.
Rodas appealed the IJ’s decision to the Board of Immigration Appeals, which
dismissed the appeal. Before the Board, Rodas cited the hanging paragraph of
§ 1227(a)(1)(H), which provides that a fraud waiver covers any ground of inadmissibility
“directly resulting from” the fraud. She argued that both her 1990 conviction and her 1993
application for reentry without permission, both of which the IJ found made her “otherwise
inadmissible,” were the direct results of her application fraud in 1993. As the direct results
of her fraud, Rodas maintained, these two grounds could be waived under § 1227(a)(1)(H)
along with the 1993 application fraud. But, the Board reasoned, Rodas’s conviction for use
of an altered passport in 1990 could not be waived under § 1227(a)(1)(H)’s hanging
paragraph because the earlier conviction was not a direct result of her later application
fraud in 1993. Having determined that the 1990 conviction could not be waived, the Board
concluded that Rodas was not “otherwise admissible” and thus ineligible for a fraud
waiver. This petition for judicial review followed.
No. 11‐1819 Page 3
In her petition, Rodas challenges the Board’s conclusion that her 1990 conviction
made her ineligible for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H). She argues that the
conviction was a “direct result” of her application fraud in 1993, and therefore
§ 1227(a)(1)(H) allows the Attorney General to waive removal based on the conviction as
well. Because the Board issued its own decision, rather than merely adopting the IJ’s
decision, this court reviews the Board’s order directly and can uphold the order only on a
basis that the Board has articulated. See Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011);
Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). And because Rodas challenges a legal
determination, this court reviews the determination de novo and affords deference to the
Board’s reasonable interpretations of the Immigration and Nationality Act. INS v. Aguirre‐
Aguirre, 526 U.S. 415, 425 (1999); Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir. 2005).
Under 8 U.S.C. § 1227(a)(1)(H), the Attorney General may waive removal based on
fraud. The waiver is available only to immigrants who (1) possessed an immigrant visa or
equivalent document at the time of admission, (2) are the parent, spouse, son, or daughter
of a United States citizen, and (3) were “otherwise admissible” at the time of admission.
See id. “Otherwise admissible” means “not excludable on some ground other than the entry
fraud.” See INS v. Yueh‐Shaio Yang, 519 U.S. 26, 30–31 (1996). In this case, the “entry fraud”
with which the government charged Rodas was lying on her 1993 application, and the
dispute here is whether she was “otherwise admissible” apart from that entry fraud.
A fraud waiver forgives both the entry fraud and all grounds for removal “directly
resulting from such fraud or misrepresentation.” 8 U.S.C. § 1227(a)(1)(H). We have not
defined when a ground for removal “directly results from” an act of fraud under
§ 1227(a)(1)(H), nor have most of our sister circuits. But the Ninth Circuit has. In Vasquez v.
Holder, 603 F.3d 1003, 1015 (9th Cir. 2010), that court considered two grounds for removing
a permanent resident alien: marriage fraud and termination of permanent residency based
on the marriage fraud. The court concluded that because the event that warranted
termination of residency status and the marriage fraud were the same event, § 1227(a)(1)(H)
applied to both. See id. at 1016–17. But in Rodas’s case, the conviction for passport fraud in
1990 happened before, and is an event separate from, her 1993 act of failing to disclose her
conviction in her application. It is difficult to conceive how a 1990 event could directly
result from an event that did not happen for another three years.
The Ninth Circuit illustrated the significance of timing in another decision. It
considered whether an immigrant was ineligible for a § 1227(a)(1)(H) waiver with three
grounds of inadmissibility: prior deportation, illegal return, and fraud in applying for
permanent residence. Corona‐Mendez v. Holder, 593 F.3d 1143, 1147 (9th Cir. 2010). When he
applied for permanent residency, Corona‐Mendez concealed his earlier deportation and
illegal reentry. He argued that, under § 1227(a)(1)(H), these first two grounds of
No. 11‐1819 Page 4
inadmissibility should be treated as a single ground for removal along with his later
concealment because the first two grounds were the subject of the concealment. See id. at
1148. But the court ruled that the prior deportation and the illegal return were “temporally
and legally distinguishable from his later fraud on his applications.” Id.
Rodas’s situation is identical to Corona‐Mendez’s. Her 1990 conviction is
“temporally and legally distinguishable from [her] subsequent fraud on [her] application[].”
Id. Like Corona‐Mendez’s rejected argument, Rodas contends that because her prior
conviction was the “subject of” her later application fraud, a § 1227(a)(1)(H) waiver could
apply to both. But although her 1990 conviction was the subject of Rodas’s 1993 application
fraud, that earlier conviction could not directly result from her application fraud, as the
statute requires, because the fraud happened three years after the conviction.
Invoking INS v. Errico, 385 U.S. 214, 222–24 (1966), Rodas urges that the subject (the
1990 conviction) of a fraud (the 1993 application) may result from the fraud. In Errico, an
alien fraudulently inflated his labor skills on his application for admission in order to evade
a quota restriction. The Supreme Court defined “otherwise admissible” in the predecessor
version of 8 U.S.C. § 1227(a)(1)(H) not to bar the alien even though he was simultaneously
inadmissible for both the fraud and the quota restriction. See Errico at 222–23. But the subject
(the quota restriction) and the fraud (the false application) were contemporaneous events,
unlike the conviction and application fraud here. In any case, in Reid v. INS, 420 U.S. 619
(1975), the Court held that Errico’s holding did not extend “to any of the grounds of
excludability specified in § 121(a) other than [the quota restrictions].” Reid, 420 U.S. at 630;
see also Gawaran v. INS, 91 F.3d 1332, 1335 n.1 (9th Cir. 1996) (“Reid, while not overruling
Errico, specifically limited it to its facts.”). Reid thus forecloses expanding the rule in Errico
beyond quota restrictions and the direct results of the waived fraud. Reid, 420 U.S. at 630.
Accordingly, we DENY the petition for review.
