by Emmanuel Samonte Tipon, Esq.
Is a son still a “son” of his mother after his mother dies?
Is a mother still a “mother” of his son after she dies?
Who is asking these questions? They sound silly but they are not.
Unless you are willing to say that the immigration authorities are asking silly questions just to get rid of aliens.
Rolando and his mother were both Filipino nationals. His mother immigrated to the U.S. and became a U.S. citizen. She petitioned Rolando as an unmarried son of a U.S. citizen under 8 U.S.C. § 1153(a)(1).
Rolando applied to the U.S. Embassy in Manila for a visa for entry to the United States indicating that he was unmarried which was false. He was issued a visa and immigrated to the US. Fifteen years later, the Government initiated removal proceedings against him, alleging that he violated 8 U.S.C. § 1182(a)(6)(C)(i), which forbids procuring a visa by willfully misrepresenting a material fact.
Rolando requested relief under INA Section 237(a)(1)(H) [8 U.S.C. § 1227(a)(1)(H)], known as the “fraud waiver” provision which gives the Attorney General or his designee, an immigration judge (“IJ”), the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation.
8 U.S.C. § 1227(a)(1)(H) provides: “The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien . . . who— (i) (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission…”
The removal proceedings against Rolando dragged on for years. Rolando’s mother died. The IJ held that Rolando was eligible for the waiver, since he “continues to be the son of a United States citizen” mother even after the death of his mother.
The BIA sustained the government’s appeal and reversed the IJ holding that “to be eligible for a waiver of removal” under § 1227(a)(1)(H)(i), “an alien must establish a qualifying relationship to a living relative.” Matter of Federiso, 24 I. & N. Dec. 661, 661 (BIA 2008). Since Rolando’s mother was no longer living, the BIA held that Rolando was no longer eligible to apply for a § 1227(a)(1)(H)(i) waiver. In other words, once a mother dies, she is no longer a mother of his son. Thus the BIA vacated the IJ’s decision and ordered Rolando removed to the Philippines.
Once a son, always a son
The Court of Appeals reversed the BIA, holding that Rolando is still the son of his U.S. citizen mother even after his mother died. Therefore Rolando was eligible to apply for a waiver.
The Court said that the BIA interpreted the phrase “spouse, parent, son, or daughter of a citizen of the United States,” 8 U.S.C. § 1227(a)(1)(H)(i)(I) to mean spouse, parent, son, or daughter of a living citizen of the United States. 24 I. & N. Dec. 661 at 662-64. This is not what the statute says. It is not the role of those who enforce and interpret immigration law to impose unilaterally novel substantive requirements beyond those set forth in the immigration law itself. See Kazarian v. U.S. Citizenship & Immigration Servs., 596 F.3d 1115, 1121 (9th Cir.2010) (holding that neither USCIS nor its Administrative Appeals Office may unilaterally impose substantive requirements for visa eligibility beyond those set forth in the relevant governing regulations).
The court pointed out that a child never ceases to be his mother’s son. He always is her son, even after her death. The statutory language at issue here is plain: the son of a U.S. citizen may be eligible for a waiver.
The court rejected the government’s reliance on Kalezic v. INS, 647 F.2d 920 (9th Cir.1981), involving an alien who was in the process of divorcing his U.S. citizen spouse whom the Court held was not eligible to receive a waiver despite being the husband of a U.S. citizen. The court said the alien was “soon-to-be the ex-husband” of a U.S. citizen. A husband ceases to be his wife’s spouse upon divorce because following the divorce, he no longer is her spouse.
The court said that neither the BIA nor the court may further its preferred interpretation of Congress’s intent by misreading or adding to the statutory eligibility requirements that Congress has laid out quite clearly. Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010).
QUERY: A visa application form asks: “Spouse’s Full Name (even if divorced or separated).”
Should the visa applicant (a widow) write the name of her spouse (even if deceased)?
If the widow visa applicant writes the name of her deceased husband in the visa application can she be charged with committing fraud or misrepresentation?
Can she successfully argue that “a wife is always her husband’s wife even after his death?
We plan to raise this argument in a pending deportation case.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: email@example.com. Website: https://www.tiponlaw.com.
The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.