Wilson Correa v. Jefferson Sessions ( 2018 )

Case: 17-60256 Document: 00514411401 Page: 1 Date Filed: 04/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60256 FILED
Summary Calendar April 2, 2018
Lyle W. Cayce
Clerk
WILSON D. CORREA, also known as Wilson Dario Correa Garcia,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A043 027 194
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Wilson D. Correa, a native and citizen of Colombia, challenges the Board
of Immigration Appeals’ (BIA) determination that he is ineligible for a waiver
of removability under 8 U.S.C. § 1227(a)(1)(H). In late 1991, Correa applied
for an immigrant visa but failed to disclose on his application a July 1991 drug
conviction in the United States; he was admitted to the United States as a
lawful permanent resident. He later traveled abroad and, upon his return, was
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 17-60256 Document: 00514411401 Page: 2 Date Filed: 04/02/2018
No. 17-60256
paroled into the United States. The Government then charged him with
removability under 8 U.S.C. § 1227(a)(1)(A) as an alien who, at the time of his
entry or adjustment of status, was inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i). That section states: “Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the United States
or other benefit provided under this chapter is inadmissible”. Correa conceded
removability but sought a waiver under 8 U.S.C. § 1227(a)(1)(H), which was
denied.
We review the decisions of both the BIA and the immigration judge
because the BIA approved of, and relied upon, the immigration judge’s
decision. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Whether an
alien is statutorily eligible for a waiver of removal is a question of law reviewed
de novo, “deferring to the BIA’s interpretation of the statutes and regulations
it administers”. Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009).
Section 1227(a)(1)(H) provides: an alien shall be eligible for a waiver of
“[t]he 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 [8 U.S.C. §] 1182(a)(6)(C)(i)”, including
procuring a visa by fraud, if the alien was, inter alia, “otherwise admissible to
the United States at the time of such admission except for those grounds of
inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a)
of this title which were a direct result of that fraud or misrepresentation”. In
other words, the § 1227(a)(1)(H) waiver is not available unless, subject to
exceptions not relevant here, the alien was “otherwise admissible” and meets
other requirements.
2
Case: 17-60256 Document: 00514411401 Page: 3 Date Filed: 04/02/2018
No. 17-60256
According to Correa, a plain reading of § 1227(a)(1)(H) provides a waiver
for all grounds of inadmissibility or removability resulting from the fraud that
rendered an alien inadmissible at the time of admission or adjustment of
status. Under Correa’s interpretation, § 1227(a)(1)(H) would not only waive
his removability arising from his 1991 misrepresentation in his visa
application, but also his inadmissibility that results from the 1991 drug
conviction that was the subject of that misrepresentation. This interpretation
would lead to the illogical result that the fraud waiver “waives a substantive
ground for deportation . . . if the alien can affirmatively prove his fraudulent
intent at the time of entry, but grants no relief to aliens” similarly situated
“who are unable to satisfactorily establish their dishonesty”. Reid v. INS, 420
U.S. 619, 629 (1975). Such a reading is untenable and ignores the requirement
that an alien be “otherwise admissible” to be eligible for the waiver. See, e.g.,
de Vargas v. INS, 409 F.2d 335, 338 (5th Cir. 1968).
At the time Correa submitted his fraudulent application, he was
otherwise inadmissible due to a substantive ground of exclusion, i.e., as an
alien who had been convicted of a controlled substance offense. 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Accordingly, the BIA’s determination that the
§ 1227(a)(1)(H) waiver was statutorily unavailable to Correa was correct. See
Reid, 420 U.S. at 629–31; de Vargas, 409 F.2d at 338.
DENIED.
3