Following are six waivers that have not been discussed elsewhere in this chapter:

RELIEF - WAIVERS - MARRIAGE FRAUD
Vasquez v. Holder, 602 F.3d 1003 (9th Cir. Apr. 19, 2010) (hardship waiver, under INA 216(c)(4), to have condition removed for lawful permanent residents who did not jointly petition to remove conditions, or did not appear for an interview, is not available to a noncitizen who obtained LPR status though marriage fraud; however, noncitizen may seek relief under INA 237(a)(1)(H)).

BIA

RELIEF " VISA-FRAUD WAIVER " ADJUSTMENT OF STATUS CONSTITUTES AN ADMISSION
Matter of Agour, 26 I&N Dec. 566 (BIA 2015) (adjustment of status constitutes an "admission" for purposes of determining an aliens eligibility to apply for a visa-fraud waiver under INA 237(a)(1)(H), 8 U.S.C. 1227(a)(1)(H) (2012)); distinguishing Matter of Connelly, 19 I&N Dec. 156 (BIA 1984).

RELIEF - IMPUTING KNOWLEDGE OF PARENTS ONTO CHILD
Mushtaq v. Holder, __ F.3d __ (9th Cir. Sept. 23, 2009) (BIA correctly imputed parents knowledge of inadmissibility to petitioner in denying application for waiver under INA 212(k)).

First Circuit

RELIEF - ADJUSTMENT OF STATUS - INADMISSIBILITY - VISA FRAUD - WAIVER
Tchuinga v. Gonzales, 545 F.3d 54 (1st Cir. Jul. 7, 2006) (noncitizen ineligible for adjustment of status due to prior submission of a frivolous asylum application; court lacks jurisdiction to review frivolous asylum application because it was not raised in the motion to reopen). http://laws.lp.findlaw.com/1st/051875.html

RELIEF - ADJUSTMENT OF STATUS - INADMISSIBILITY - VISA FRAUD - WAIVER
Coelho v. Gonzales, 452 F.3d 104 (1st Cir. Jul. 6, 2006) (applicant for adjustment of status properly held inadmissible because of a prior fraudulent attempt to gain an immigration benefit and ineligible for a waiver of inadmissibility because he did not have a qualifying relative). http://laws.lp.findlaw.com/1st/051971.html

Second Circuit

RELIEF " WAIVERS " WAIVER OF INADMISSIBILITY UNDER INA 237a)(1)(H)
Ahmed v. Holder, 624 F.3d 150 (2d Cir. Oct. 27, 2010) (court of appeals lacked jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibity under INA 237(a)(1)(H), 8 U.S.C. 1227(a)(1)(H)).

JUDICIAL REVIEW - EXTREME HARDSHIP QUESTION UNDER INA 212(i)
Zhang v. Gonzales, 457 F.3d 172 (2d Cir. Jul. 12, 2006) (judicial review of whether respondent showed extreme hardship for purposes of adjustment of status under INA 212(i) is barred as a discretionary determination under 8 U.S.C. 1252(a)(2)(B)(i)).

Fourth Circuit

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

Seventh Circuit

RELIEF " WAIVER " FRAUD
Acquaah v. Sessions, 874 F.3d 1010 (7th Cir. Nov. 6, 2017) (BIA erred in determining noncitizen was ineligible for fraud waiver under INA 1227(a)(1)(H), which waives not only a charge formally based on fraud, but also any grounds of inadmissibility directly resulting from such fraud or misrepresentation.).

RELIEF " WAIVERS " JUDICIAL REVIEW " DISCRETIONARY DECISIONS
Asentic v. Sessions, 873 F.3d 974 (7th Cir. Oct. 17, 2017) (court lacks jurisdiction to review discretionary denial of fraud waiver under INA 237(a)(1)(H)).

VISAS " U-VISA " IJ JURISDICTION
L.D.G. v. Holder, __ F.3d __ (7th Cir. Mar. 12, 2014) (immigration judge has jurisdiction to consider noncitizens waiver request under INA 212(d)(3)(A), that would allow noncitizen to obtain U-Visa, even after the waiver has been denied by USCIS).

WAIVERS " 237(A)(1)(H) WAIVER INAPPLICABLE TO FRAUD CONVICTION
Gourche v. Holder, ___ F.3d ___, 2011 WL 5443657 (7th Cir. Nov. 9, 2011) (discretionary waiver of deportability, under INA 237(a)(1)(H), 8 U.S.C. 1227(a)(1)(H), for fraudulent conduct is inapplicable to a noncitizen deportable for a visa fraud conviction and therefore deportable under INA 237(a)(3)(B)(iii), 8 U.S.C. 1227(a)(3)(B)(iii)).

RELIEF " WAIVERS " 241(f) RELIEF
Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. Aug. 23, 2011) (a waiver of the fraud under former INA 241(f) applies only to those inadmissible on grounds of fraud; respondent was inadmissible on grounds of a controlled substance conviction); citing Matter of Sosa"Hernandez, 20 I. & N. Dec. 758, 760"61 (BIA 1993) (a waiver under INA 241(f) waives not only deportability but also the underlying fraud, thereby validating the applicant's lawful permanent resident status and making him theoretically eligible for a 212(c) waiver). NOTE: The courts reasoning is arguably faulty. In Sosa-Hernandez, the INS never charged the respondent with fraud, only with deportability for having been convicted of a controlled substance offense. In addition to finding deportability as charged for the drug trafficking offense, the IJ found sua sponte that he was excludable for fraud at the time of his entry as a LPR. See Matter of Sosa-Hernandez, 20 I&N Dec. 758, 759 (BIA 1993). Thus, the procedural posture of Sosa-Hernandez lines up with Torres: in both cases, there was commission of fraud at the time of entry as a LPR, the respondent was convicted for drug trafficking, and charged only with deportability for the drug offense, and IJ found an additional ground of deportability. In Torres, the IJ found that he was inadmissible for fraud in 2009 when he returned from a trip abroad; the BIA reversed that part of the IJ's decision and agreed that he was excludable in 1984 at the time of his entry. The BIA's reasoning for avoiding a direct application of Sosa-Hernandez was abominable: in Torres, the DHS challenged his eligibility for a 241(f) waiver and refused to charge him with an I-261 for the fraud ground. Thus, because DHS never charged him formally with being excludable at the time of entry in 1984 (before he pled guilty to drug trafficking), he does not qualify for a 241(f) waiver even though both the IJ and the BIA agreed that he had committed fraud as noted above. Thanks to Maria Baldini-Potermin.

RELIEF - WAIVER FORM I-601
Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. Apr. 30, 2008) (BIA erred in finding that nonimmigrant had failed to make application for INA 212(d)(3) waiver, as opposed to INA 212(i), where both waivers require the same form, the I-601, and that form does not allow the applicant to specify which form of relief is being sought).

RELIEF - INA 212(d)(3) WAIVER
Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. Apr. 30, 2008) (nonimmigrant paroled into the United States for purposes of inadmissibility proceedings is not barred from making an application for a waiver under INA 212(d)(3); "At oral argument the government relied heavily on the BIA's decision in Matter of Fueyo, 20 I. & N. Dec. 84 (BIA 1989), to support its argument that it is too late now that removal proceedings are underway for Atunnise to apply for a 212(d)(3) waiver. In Fueyo, the BIA held that an alien who entered the United States illegally and was in deportation proceedings could not apply for a waiver under 212(d)(3)(B) because, "[b]y its very nature, the relief sought can only confer advance permission for a future entry, and the statute and regulations make no provision for this waiver to be granted retroactively." Id. at 87. But Atunnise is not proposing a retroactive grant because by virtue of her detention she has not yet entered the United States. She has been held in limbo at the border for almost two years and is still seeking entry. See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (noting that the "distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law"); Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (noting that "the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States"); Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir.2007) (noting that even though paroled aliens are physically present in the United States "they nevertheless remain constructively detained at the border"); Sidhu v. Ashcroft, 368 F.3d 1160 (9th Cir.2004) (holding that alien taken into custody following detention at airport did not enter the United States). . . . As a practical matter, we see no reason why Atunnise would not still be eligible for a 212(d)(3) waiver. Even if she is required to file her I-601 with the consular office, nothing in the regulation states that she has to be physically present in Lagos to do so.").

RELIEF - WAIVERS - NONIMMIGRANT VISA WAIVER UNDER 212(d)(3)
Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. Apr. 30, 2008) (case remanded to allow immigration judge to reconsider petitioner's eligibility for a waiver of inadmissibility under INA 212(d)(3) where flaw in form DS-156 did not allow petitioner to correctly answer a question regarding her immigration status or the consular office to realize that she needed to apply for a waiver, and IJ failed to alert her to all the avenues of relief or afford her an opportunity to apply).

Ninth Circuit

RELIEF - INA 212(h) - VIOLENT AND DANGEROUS CRIMES
Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006) (BIA erred in applying heightened exceptional and extremely unusual hardship standard in application for INA 209(c) waiver without first determining, on the basis of the underlying facts, whether conviction for statutory rape was a violent or dangerous crime).

Tenth Circuit

VISA WAIVER PROGRAM - VAWA
Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. Jun. 20, 2006) (noncitizens who enter on the visa waiver program waive all rights to contest removal or appear before an immigration judge, except to apply for asylum; VAWA applicant who entered through Visa Waiver Program and overstayed therefore cannot adjust). http://laws.lp.findlaw.com/10th/041436.html

Other

RELIEF - 212(d)(3) WAIVER - TERRORIST SUPPORT UNDER DURESS
USCIS Fact Sheet, May 10, 2007: "On April 27, 2007, Secretary Chertoff exercised his authority under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (the Act), determining that subsection 212(a)(3)(B) (iv)(VI) shall not apply to certain individuals who have provided material support under duress to certain terrorist organizations described in subsections 212(a)(3)(B)(vi)(I) and (II) (designated terrorist organizations) (often referred to as Tier I and Tier II organizations) if warranted by the totality of the circumstances. The authority not to apply subsection 212(a)(3)(B)(iv)(VI) of the Act in certain circumstances shall be implemented by United States Citizenship and Immigration Services (USCIS) in consultation with United States Immigration and Customs Enforcement (ICE)."

INADMISSIBILITY - VISA FRAUD - FRAUD BY MINORS
When the child is under 18, there is a good argument that he or she cannot knowingly commit fraud. If someone else (but not the child) indicated that the child was a USC by presenting a USC birth certificate at the border, the child did not make a false claim to United States citizenship, or engage in visa fraud, but merely made an EWI entry. Thanks to Leonor Perretta.

RELIEF - WAIVERS - UNLAWFUL PRESENCE
INA 212(a)(9)(C)(i) renders inadmissible both those who left under a deportation order, and those who had more than one year unlawful presence, and thereafter enter or try to enter illegally. INA 212(a)(9)(C)(ii) states that INA 212(a)(9)(C)(i) shall not apply if the AG consents to readmission. Presumably this means via an I-212. Usually, one thinks of an I-212 as permission to reapply after deportation, but the way clause INA 212(a)(9)(C)(ii) is drafted, it also appears to cover unlawful presence. Under 8 C.F.R. 212.2(e) and (i), applicants are entitled to seek permission to reapply simultaneously with their applications for adjustment, and if granted, permission is retroactive to the date of their re-embarkment. This leaves only the problem that the I-212 would be filed before the 10 years specified in clause (ii) have run. Those are the same 10 years which can be waived under INA 212(a)(9)(B)(v). Counsel can attempt to obtain the two waivers simultaneously or keep the case going until ten years have passed since the last departure. (Even if CIS denies it, it may be a while before an NTA is issued, depending on the jurisdiction). There is at least an argument that it can be cured with an I-212, together with an I-601. Thanks to Lisa Brodyaga.

RELIEF - VENUE FOR WAIVER APPLICATION - POST-DEPORTATION
Counsel trying to obtain a new immigrant visa petition, after a noncitizen has suffered deportation, may file an application for a waiver under INA 212 at the USCIS office with jurisdiction over the place of removal, rather than at the consulate. Local offices sometimes take up to several years to adjudicate the waivers. This strategy can be used where a noncitizen has been removed on aggravated felony grounds, but whose convictions do not trigger inadmissibility. To avoid confusion in the local offices when they receive the I-212s, counsel can include a cover letter or brief explaining why the application is filed in the local office, rather than at the consulate. Thanks to Rachel E. Rosenbloom.