Avila-Anguiano v. Holder, No. 11-3958 (6th Cir. Aug. 7, 2012) (published).
In this decision, the court struggled with the scope of my favorite waiver, the 237(a)(1)(H) waiver.
The alien had two misrepresentation incidents. The first was in 1991 when he made a false USC claim at the port of entry. He was convicted of making a false USC claim and was returned to Mexico. Two years later, he made another misrepresentation when he failed to disclose that incident in his successful immigrant visa application.
There was no dispute that 237(a)(1)(H) was available to waive the second misrepresentation because that was made at the time of admission. ICE and the BIA asserted that the earlier misrepresentation was outside of 237(a)(1)(H)'s reach because it was made prior to the admission.
The Court disagreed and found that both misrepresentations were waivable. The first misrepresentation rendered him inadmissible at the time of his 1993 admission because it made him an alien described in 212(a)(6)(C)(i) [there was no separate ground of inadmissibility for false USC claims in 1993]. The statute requires that the alien be inadmissible at the time of admission, not that he make the misrepresentation at that time.