The Board of Immigration Appeals has issued a precedential decision that corrects a decade-long misinterpretation of fraud waivers in removal proceedings. The Board reversed a decade-old decision that broadly waived fraud committed by aliens after they had been admitted to the United States. This overruling of prior precedent significantly narrows the availability of fraud waivers for certain removable aliens and changes how you must advise clients on eligibility for discretionary relief.
What changed
In Matter of Fortjoe, the BIA overruled its prior opinion in Matter of Agour, concluding it was “reasonable and compliant to define ‘admission,’ as provided in [the statute],” rather than treating adjustment of status as an “admission” for purposes of section 237(a)(1)(H) fraud waivers.
The prior Matter of Agour precedent had broadly waived fraud grounds of removability for aliens who committed fraud after being admitted to the United States or after adjusting status. The BIA in Matter of Fortjoe rejected that interpretation, holding that there was no indication that Congress in amending section 237(a)(1)(H) in 1996 intended to expand the waiver to include aliens who committed fraud after they’d been admitted.
Section 237(a)(1)(H) fraud waivers are discretionary, meaning that even if applicants prove they are statutorily eligible for that relief, they must still prove they are deserving of a waiver.
Why it matters
For a decade, practitioners could argue that aliens who committed fraud after adjustment of status had access to a broad categorical waiver under section 237(a)(1)(H), potentially avoiding removal. That interpretation is now foreclosed by binding BIA precedent.
Going forward, your clients facing fraud removability will have a narrower path to relief through this waiver provision. The BIA’s clarification means you must more carefully assess:
- When the fraud occurred (before or after admission)
- Whether your client is actually eligible under the statutory text
- Whether discretionary factors support waiving an eligible ground
Additionally, this decision has ripple effects in related areas. The immigration judge in removal proceedings of Mahmoud Khalil distinguished Matter of Agour in denying Khalil’s section 237(a)(1)(H) fraud waiver and ordering him removed—a case currently on appeal to the BIA—and other pending cases may be affected by the new precedent.
Way forward
- Audit pending cases: Review any open removal proceedings or appeals involving section 237(a)(1)(H) fraud waivers. Matter of Fortjoe now governs eligibility.
- Reassess client eligibility: Determine whether your client’s fraud occurred before or after admission under the revised interpretation.
- Focus on discretion: If your client is statutorily eligible under the narrowed framework, concentrate advocacy on demonstrating positive discretionary factors (family ties, community contributions, lack of aggravating conduct post-fraud).
- Check state court analogues: Verify whether any pending cases cite Matter of Agour and brief the overruling in any supplemental filings or appellate submissions.
Disclaimer
This article is provided for informational purposes only and is not legal advice. The Center for Immigration Studies published this analysis for practitioners and the public; articles.folaform.com is not a law firm. You should consult with a licensed immigration attorney about your specific situation and verify all conclusions against the BIA opinion and applicable statute. BIA precedent can change, and individual circumstances vary widely. The source materials linked above are authoritative; always confirm your understanding against the primary opinion.