By Cyrus D. Mehta and Kaitlyn Field*
On February 26, 2026, in Matter of Fortjoe, the BIA held that “’admission’ in part 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), refers solely to an alien’s lawful entry into america after inspection and authorization by an immigration officer. Mr. Fortjoe was a citizen of Ghana who was admitted to america as a nonimmigrant in 1995, and later entered right into a fraudulent marriage with a U.S. citizen. In a 2007 visa interview, he did not disclose that he had fathered two youngsters by one other lady throughout his marriage to the U.S. citizen partner. In 2012 he utilized for naturalization and disclosed the 2 youngsters born exterior of his marriage. USCIS denied his naturalization utility and DHS initiated removing proceedings pursuant to INA 237(a)(1)(A), which renders a noncitizen “who on the time of entry or adjustment of standing was inside a number of of the courses of aliens inadmissible by the legislation current at such time” detachable. Mr. Fortjoe sought a waiver of inadmissibility pursuant to INA 237(a)(1)(H), which is offered to noncitizens who’re in removing proceedings, are the partner, mother or father, or baby of a U.S. citizen or LPR, and are admissible to the U.S. except for the fraud or misrepresentation, however the Immigration Choose denied the waiver on discretionary grounds.
In 2015, in Matter of Agour, the BIA had beforehand held that “adjustment of standing constitutes an ‘admission’ for functions of figuring out an alien’s eligibility to use for a waiver” beneath INA 237(a)(1)(H). In Matter of Fortjoe, the BIA overruled Matter of Agour. The BIA reasoned that “the plain and pure which means of the language of part 237(a)(1)(H) limits the waiver to fraud or misrepresentation on the time of an alien’s lawful entry into america after inspection and authorization by an immigration officer.” The BIA additionally examined the statutory historical past of this provision, discovering that Congress’ “change in language from ‘entry’ to ‘admission’ seems to have been merely a conforming modification, relatively than one meant to have a substantive impact”, and that Congress didn’t make a corresponding change to INA 237(a)(1)(A), which renders noncitizens who had been inadmissible “on the time of entry or adjustment of standing” detachable.
In overruling Matter of Agour, the BIA relied on Loper Shiny v. Raimondo, analyzed in prior blogs, by which the Supreme Court docket abolished the long-standing Chevron doctrine, beneath which, courts had been required to defer to the federal government company’s interpretation of an ambiguous statute. Loper Shiny, in keeping with the BIA, holds that “reexamination of a precedent’s reasoning could also be warranted, however the doctrine of stare decisis”. The BIA’s determination in Fortjoe illustrates that Loper Shiny, which can function a software for difficult Trump administration immigration insurance policies, can be relied upon by the company to overturn its personal precedent that’s favorable to noncitizens. Nonetheless, the BIA’s determination is itself an company interpretation that’s topic to being overturned beneath Loper Shiny, as was just lately illustrated when a federal courtroom in California overruled the BIA’s determination in Matter of Yajure Hurtado, which had held {that a} noncitizen who entered the US with out inspection is just not eligible for bond beneath INA 235(b)(2)(A). It is probably not acceptable for the BIA to depend on Loper Shiny, solely a federal courtroom ought to have the ability to depend on Loper Shiny and never pay deference to a BIA determination.
If the BIA determination in Matter of Agour doesn’t get reversed within the Sixth Circuit Court docket of Appeals, it will drastically restrict reduction beneath INA 237(a)(1)(H) to those that are inspected and admitted as lawful everlasting residents after acquiring an immigrant visa at a US consulate. It could not apply to individuals who utilized for adjustment of standing and dedicated fraud or misrepresentation throughout the course of. Individuals making use of for naturalization must also bear in mind that whether it is discovered that they weren’t appropriately adjusted to lawful everlasting resident standing within the US because of fraud or misrepresentation throughout adjustment of standing, wouldn’t have the ability to avail of the waiver beneath INA 237(a)(1)(H) if they’re denied naturalization and positioned in removing proceedings. Our prior weblog contemplated eventualities by which an applicant may be denied naturalization, which might additionally embody circumstances of harmless misrepresentation whereas adjusting standing within the US. An instance might embody one who was mistakenly granted adjustment of standing by the federal government in a choice class the place the precedence date might not have been present.
The BIA made clear that its ruling in Matter of Fortjoe will apply prospectively and never retroactively. Thus, individuals who have obtained waivers previous to this determination based mostly on fraud or misrepresentation is not going to be adversely impacted by this determination.
*Kaitlyn Field is a Associate at Cyrus D. Mehta & Companions PLLC.
