Arbitration May Have the Last Word in Contentious Illegal Immigration Case

Immigration is a hot topic in today’s global economy as travel becomes cheaper and labor markets become more fluid. However, the rules of immigration can be tricky and, in some cases, contradictory. For instance, in the U.S., the Ninth and Second Circuit Courts of Appeals gave two different rulings on the same issue.

In the case of Orozco vs. Mukasey, the Ninth Circuit Court of Appeals found that, “a person who obtains entry into the United States by fraudulent means is statutorily ineligible for adjustment of status.” Brian Orozco entered the United States using someone else’s green card and then married a U.S. citizen who successfully filed an I-30 on his behalf. Later, he was put under removal proceedings. During the proceedings he applied for an adjustment of status, arguing that according to the law, he was eligible to file for permanent residence as he was inspected and admitted, even though his documents were fraudulent. To overcome his fraudulent entry, Orozco filed an INA § 212(i) waiver.

First, the Court found that, “an alien, such as petitioner, who obtained admission by fraud, has not been “admitted” to the United States.” Second, the Court upheld the immigration judge’s ruling that lawful admission is a requirement for adjustment of status that cannot be waived, even by an accepted 212(i) fraud waiver. As a result, Orozco was denied adjustment of status; however, on May 12, 2008, the Court referred the case to the circuit mediator in response to a joint request by both parties to reach a decision through mediation, not litigation. Both sides thought that further administrative adjudication may be possible for the removal case; they plan to discuss these possibilities in mediation before the case once again goes before the Board of Immigration Appeals or an immigration judge. Pending on what is decided during mediation, it is possible that the Court’s current ruling may not be the final decision on the case.

On the other hand, in April of 2008, the Second Circuit Court of Appeals ruled that immigrants who entered the U.S. on fraudulent documents could file a waiver application and adjust their status. In this case, Emokah vs. Mukasey, a Nigerian woman entered the U.S. using a false passport. The Court ruled that while she was inadmissible at the time of her entry due to her false documents, she still cleared entry and inspection and was legally “admitted.” This made her eligible to apply for a status change with a hardship waiver, though the judge ultimately denied her waiver.

This post was written by Chandra Srivastava.

Links:

American Immigration Law Foundation Practice Advisory on Orozco vs. Mukasey:
http://www.ailf.org/lac/pa/orozco-pa.pdf

Official joint motion to refer the matter to mediation:
http://www.ailf.org/lac/chdocs/OrozcoCtDocs.pdf

Official case:
http://vlex.com/vid/36607455

Alternative blog opinions:
http://www.philadelphiaimmigrationlawyerblog.com/2008/05/orozco_v_mukasey_does_fraudule_1.html
http://www.4immigration.com/index.php?option=com_content&task=view&id=247&Itemid=46