FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENEROSE VASQUEZ, 

Petitioner, No. 05-73714

v. Agency No.  A044-808-721 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 6, 2009—San Francisco, California

Filed April 19, 2010

Before: Mary M. Schroeder and Marsha S. Berzon,

Circuit Judges, and Honorable Lyle E. Strom,*

District Judge.

Opinion by Judge Berzon

*The Honorable Lyle E. Strom, Senior United States District Judge for

the District of Nebraska, sitting by designation. 

5697
COUNSEL

Jeremiah Johnson, San Francisco, California, for the petitioner.

5700 VASQUEZ v. HOLDER
Peter D. Keisler, Richard M. Evans, and Allen W. Hausman,

U.S. Department of Justice, Washington, D.C., for the Attorney General.

OPINION

BERZON, Circuit Judge:

We consider whether an alien whose legal status as the

spouse of a citizen is later terminated because the marriage

was fraudulent is eligible for discretionary relief from

removal. We conclude that she is. We grant the petition and

remand to the Board of Immigration Appeals to determine

whether petitioner Renerose Vasquez’s application for a fraud

waiver should be denied in the exercise of discretion.

BACKGROUND

Renerose Vasquez1 (Vasquez) is a 37-year-old native and

citizen of the Philippines. She married Wilfredo Vasquez, a

U.S. citizen, in the Philippines in January 1994. On February

3, 1995, Vasquez was admitted to the United States as a conditional permanent resident as the wife of a U.S. citizen. 

A. Statutory Background

We refer to Vasquez as a conditional permanent resident

because an alien admitted to the United States for permanent

residence as a spouse of a U.S. citizen obtains that status only

conditionally, pursuant to section 216 of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1186a.2 To remove the con1Petitioner’s name appears variously in the record as Rene Rose

Vasquez and Renerose Vasquez. We adopt the latter spelling here. 

2We provide parallel citations to both the INA and the U.S. Code upon

the first mention of a statutory section; subsequent citations refer only to

the INA. 

VASQUEZ v. HOLDER 5701
dition, the alien and her spouse must submit a joint petition

to the Attorney General3 within the 90-day period before the

second anniversary of the alien’s admission as a permanent

resident, stating, among other things, that the marriage was

not entered into for immigration purposes. § 216(c)(1), (d)(1),

(d)(2). The alien and her spouse must then appear together for

an interview. If the Attorney General determines that the facts

in the petition are true, including the representation that the

marriage was bona fide, the condition is removed and the

alien spouse remains a legal resident. § 216(c)(3), (d)(1).

There are three circumstances in which the Attorney General must terminate an alien’s conditional permanent resident

status: First, if the Attorney General determines, before the

second anniversary of admission, that the qualifying marriage

is invalid as a basis for permanent resident status because it

was entered into for immigration purposes, or has been judicially terminated, or a fee was paid for the filing of the petition for immediate relative status, then the Attorney General

“shall terminate the permanent resident status of the alien . . .

involved as of the date of the determination.” § 216(b)(1).

Second, if the alien and her spouse do not file a timely joint

petition to remove the conditions on residence or do not

appear for the required interview, then the Attorney General

“shall terminate the permanent resident status of the alien as

of the second anniversary of the alien’s lawful admission for

permanent residence.” § 216(c)(2). Third, if the alien and her

spouse file a petition at the proper time and appear for an

interview but the Attorney General determines that the qualifying marriage was not “entered into in accordance with the

laws of the place where the marriage took place,” has been

3Effective March 1, 2003, the Immigration and Naturalization Service

(INS), under the direction of the Attorney General, ceased to exist and its

functions were transferred to the Department of Homeland Security

(DHS). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116

Stat. 2135 (Nov. 25, 2002). Because Vasquez submitted a joint petition to

the INS and had it adjudicated before 2003, we continue to refer to the

Attorney General as the relevant decision maker. 

5702 VASQUEZ v. HOLDER
judicially terminated, or was “entered into for the purpose of

procuring an alien’s admission as an immigrant,” or a fee was

paid for the filing of a petition for immediate relative status,

§ 216(d)(1)(A), then the Attorney General “shall terminate the

permanent resident status of an alien spouse . . . as of the date

of the determination.” § 216(c)(3)(C). 

Section 216(c)(4) allows the Attorney General to remove

the conditions on residence for an alien who fails to meet the

joint petition requirement. The alien must demonstrate that

she meets one of three criteria, one of which is that “extreme

hardship” would result if she were removed. § 216(c)(4)(A).4

4

In relevant part, § 216(c)(4) provides: 

(4) Hardship waiver 

The Attorney General, in the Attorney General’s discretion, may

remove the conditional basis of the permanent resident status for

an alien who fails to meet the requirements of paragraph (1) if the

alien demonstrates that — 

(A) extreme hardship would result if such alien is removed,

(B) the qualifying marriage was entered into in good faith by

the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the

alien was not at fault in failing to meet the requirements of

paragraph (1), or 

(C) the qualifying marriage was entered into in good faith by

the alien spouse and during the marriage the alien spouse or

child was battered by or was the subject of extreme cruelty

perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet

the requirements of paragraph (1). 

In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the

alien was admitted for permanent residence on a conditional

basis. In acting on applications under this paragraph, the Attorney

General shall consider any credible evidence relevant to the

application. The determination of what evidence is credible and

the weight to be given that evidence shall be within the sole discretion of the Attorney General. . . . 

VASQUEZ v. HOLDER 5703
B. Factual Background

As required, Vasquez and Wilfredo Vasquez filed a joint

petition to remove the conditions on residence and appeared

for an interview on May 20, 1998, with the INS. Thenceforward, the case unwound in Byzantine fashion: It took seven

years to reach a final agency conclusion, required the filing of

several INS forms, triggered four hearings before immigration

judges (IJs) reflecting seemingly contradictory arguments by

each party, and resulted in seemingly contradictory rulings, by

two different IJs.

First, at the INS interview on the joint petition, Wilfredo

Vasquez signed an affidavit stating that Vasquez’s grandmother promised him $3000 (half of which he accepted, half

of which he refused) to marry Vasquez for immigration purposes. Vasquez signed an affidavit stating that she knew she

“did wrong” and that her grandmother “pa[id] Wilfredo

Vasquez b[ecause] she’s trying to help us [because] that’s the

one way.” The INS issued a written notice terminating

Vasquez’s conditional resident status. The notice recounted

Wilfredo Vasquez’s admission that the marriage was “entered

into for the sole purpose of obtaining immigration benefits,”

and cited Matter of McKee, 17 I. & N. Dec. 332 (BIA 1990),

for the proposition that “a marriage that is entered into for the

primary purpose of circumventing the immigration laws,

referred to as a fraudulent or sham marriage, has not been recognized as enabling an alien spouse to obtain immigration

benefits.” It concluded: “Based on the foregoing facts and

since the Petition . . . is a joint petition and no longer represents the signature of the United States citizen spouse, the

petition may not be approved and therefore must be denied.”

The INS then served Vasquez with a Notice to Appear,

charging her with removability under INA § 237(a)(1)(A), 8

U.S.C. § 1227(a)(1)(A), as an alien inadmissible at the time

of admission because she sought to procure admission by

fraud. While removal proceedings were pending, Vasquez

5704 VASQUEZ v. HOLDER
filed a second petition to remove the conditions on residence,

this time seeking an extreme hardship waiver under

§ 216(c)(4)(A). After Vasquez appeared before an IJ and

denied she had committed marriage fraud, the removal proceedings were continued to await the INS’s adjudication of

Vasquez’s pending application for a waiver. 

Vasquez divorced Wilfredo Vasquez on June 2, 2000, and

married Frederick Villanueva, a U.S. citizen, on December 8,

2000. Vasquez and Villanueva had a son, Eren Villanueva, on

September 10, 1999. Eren has “mild persistent asthma,”

which has required his hospitalization at least twice. Villanueva filed an immediate relative petition on Vasquez’s

behalf. To facilitate that petition, Vasquez filed a second

request for waiver of the joint petition requirement, this time

on the basis that her marriage to Wilfredo had been terminated but was entered into in good faith. Finally, in 2003

Vasquez supplemented her application for an extreme hardship waiver with documentation of hardship to her U.S. citizen husband and child. 

C. Immigration Proceedings

1. Hearing of August 15, 2003

On December 9, 2002, the INS issued a written notice

denying Vasquez’s application for an extreme hardship

waiver. The notice stated, inter alia, that Vasquez was not statutorily eligible to apply for the waiver because she had met

the joint petition requirement. Her petition had been denied on

its merits, the INS ruled, for marriage fraud. 

The removal proceedings were then renewed, and Vasquez

appeared before a visiting immigration judge, IJ Smith, on

August 15, 2003. Vasquez testified that her marriage to Wilfredo Vasquez was in good faith but she did not move in with

him because she was afraid that his ex-wife — her aunt —

would be jealous. IJ Smith held that the government had justiVASQUEZ v. HOLDER 5705
fied its decision to terminate Vasquez’s status by a preponderance of the evidence, because it had shown that “the marriage

[to Wilfredo Vasquez] was entered into for the purpose of

immigrating to the United States and no other basis.” Ruling

that no extreme hardship waiver was available because the

joint petition had been filed but denied, IJ Smith continued

the proceedings so that Vasquez could seek a waiver under

§ 237(a)(1)(H) (the “fraud waiver”). The fraud waiver provision allows the Attorney General to waive removal for an

alien who sought to procure admission by fraud and is the

spouse or parent of a U.S. citizen.

2. Hearing of January 28, 2004

The DHS responded to this suggestion by filing an additional charge of removability against Vasquez on October 24,

2003: It now charged that she was removable not only for

fraudulent admission but also, pursuant to § 237(a)(1)(D)(i),

as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated. 

Vasquez appeared before IJ Yam on January 28, 2004. IJ

Yam held that the fraud waiver did not apply to the additional

charge filed against Vasquez. She therefore pretermitted

Vasquez’s application for a fraud waiver and, in the alternative, denied the waiver “in the exercise of discretion.” Finding

Vasquez ineligible for relief, the IJ ordered her removed to

the Philippines.

3. BIA Appeal

Vasquez timely appealed the IJs’ orders to the Board of

Immigration Appeals (BIA). The BIA addressed both IJ rulings in a single decision, affirming IJ Smith’s ruling that

Vasquez was ineligible to apply for an extreme hardship

waiver, IJ Yam’s ruling that the fraud waiver would not cover

both grounds of removal, and, in the alternative, IJ Yam’s dis5706 VASQUEZ v. HOLDER
cretionary waiver denial.5

 Premised on these rulings, the BIA

dismissed Vasquez’s appeal from the removal order.

ANALYSIS

Because the BIA conducted a de novo review and issued its

own decision, our review is limited to the BIA’s decision

except to the extent that the BIA expressly adopted the opinions of the IJs. See Hosseini v. Gonzales, 471 F.3d 953, 957

(9th Cir. 2006). We review questions of law de novo, see

Aguilar Gonzales v. Mukasey, 534 F.3d 1204, 1208 (9th Cir.

2008), and factual findings for substantial evidence, see Zhao

v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008).

A. Extreme Hardship Waiver

We begin our journey through this maze of a case by considering whether, as the BIA determined, Vasquez is ineligible to seek an extreme hardship waiver. We conclude that the

BIA’s determination on this issue was correct.

[1] The opportunity to apply for an extreme hardship

waiver is available only to those who “fail[ ] to meet the [joint

petition] requirements” to remove the conditions on residence.

§ 216(c)(4). Vasquez and her U.S. citizen spouse, Wilfredo

Vasquez, timely filed a joint petition and appeared together

for an interview. The BIA held that Wilfredo Vasquez’s

admission during the interview that the marriage was for

immigration purposes did not result in a withdrawal of the

petition. Compare Matter of Mendes, 20 I. & N. Dec. 833,

838 (BIA 1994) (holding that where the petitioning spouse

signed a written statement expressly withdrawing his signature from the petition, the petition was withdrawn and treated

as though it had not been filed). Given the record, we con5As we discuss later, although the BIA seems to have construed IJ

Yam’s decision as alternatively denying both waivers as a matter of discretion, IJ Yam actually addressed only the fraud waiver. 

VASQUEZ v. HOLDER 5707
clude that substantial evidence supports the BIA’s determination that the joint petition was denied on the merits under

§ 216(c)(3)(C), rather than withdrawn.

Although the INS ruling is somewhat confusing, there is no

indication in the record that Wilfredo Vasquez withdrew his

signature from the petition, as opposed to making statements

at the interview indicating that the marriage was fraudulent.

The termination notice focused almost exclusively on marriage fraud; the 2002 INS denial of the extreme hardship

waiver interpreted the termination as premised on marriage

fraud; and the initial Notice to Appear charged Vasquez with

removability under § 237(a)(1)(A), for procuring admission

into the United States by fraud. Moreover, at the August 15,

2003, hearing before IJ Smith, everyone involved in the case

— Vasquez, the government, and the IJ — treated the termination of status as resulting from an adjudication on the merits

of the joint petition. After a lengthy hearing, IJ Smith held

that the government had carried its burden of proving by a

preponderance of the evidence that Vasquez had committed

marriage fraud, thus justifying termination of her conditional

legal status. Had the petition been withdrawn, the burden of

proof would have been on Vasquez to demonstrate that she

warranted a waiver under § 216(c)(4). See Mendes, 20 I. & N.

Dec. at 838.

[2] Vasquez argued for the first time in her opening brief

before this court that rather than failing to establish the substantive requirements for a successful petition, she had failed

to file the joint petition necessary to remove the conditions on

residence. But Vasquez and her husband did file a joint petition and appeared for an interview, and, as noted, there is no

indication that Wilfredo Vasquez at that interview expressly

withdrew his signature from the petition. We therefore cannot

disagree with the BIA that Vasquez was terminated for engaging in marriage fraud, not for failing to file a joint petition,

and so is ineligible to apply for an extreme hardship waiver

under § 216(c)(4).

5708 VASQUEZ v. HOLDER
B. Fraud Waiver

1. Eligibility

The next question we encounter as we proceed through this

labyrinthine case is whether Vasquez is eligible for an entirely

different form of immigration relief under § 237(a)(1)(H),

available to aliens inadmissible on grounds of fraud.6 The BIA

held that she is not, because the fraud waiver would not eliminate the additional charge the DHS lodged against Vasquez

midway in her removal proceedings — that she is removable

as an alien lawfully admitted for conditional permanent resident status but whose status was later terminated.

§ 237(a)(1)(D)(i). In support of its holding, the BIA cited

Matter of Gawaran, 20 I. & N. Dec. 938 (BIA 1995), aff’d

sub nom. Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996). For

the following reasons, we hold that our decision in Gawaran,

although it remains a binding precedent, does not apply to an

alien whose conditional permanent resident status was terminated not for failure to file a joint petition but upon a determination of marriage fraud. 

6Vasquez exhausted this issue before the BIA: The parties fully briefed

the issue before IJ Yam, and the BIA specifically addressed it. See Ahmed

v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (“Claims addressed on the

merits by the BIA are deemed exhausted.”). Vasquez raised the issue in

her opening brief before this court but did not provide argument supporting her position. Typically, “an issue referred to in the appellant’s statement of the case but not discussed in the body of the opening brief is

deemed waived.” Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996). Nevertheless, we have discretion to review an issue not briefed if

it is “purely one of law and either does not depend on the factual record

developed below, or the pertinent record has been fully developed.”

United States v. Berger, 473 F.3d 1080, 1100 n.5 (9th Cir. 2007). Whether

Vasquez is eligible for a fraud waiver is a purely legal question and, as

noted, was exhausted below. Because the eligibility issue is logically prior

to a question that was briefed and that we are thus required to reach —

whether the BIA properly denied Vasquez’s application for a fraud waiver

— we exercise our discretion to reach the eligibility question here. 

VASQUEZ v. HOLDER 5709
We begin with a brief discussion of the INA provisions that

most directly concern us here, provisions that, unlike the ones

discussed previously, apply beyond the marriage context.

First, § 212 of the INA, 8 U.S.C. § 1182, describes classes of

aliens ineligible for admission into the United States. In particular, § 212(a)(6)(C)(i) (the “fraud provision”) makes inadmissible “[a]ny alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure . . . a visa,

other documentation, or admission into the United States or

other benefit provided under this chapter.” 

Section 237 of the INA describes classes of deportable

aliens. Two of these categories are relevant here: First,

§ 237(a)(1)(A) makes deportable “[a]ny alien who at the time

of entry or adjustment of status was within one or more of the

classes of aliens inadmissible by the law existing at such

time.” Second, § 237(a)(1)(D) provides in relevant part that

“[a]ny alien with permanent resident status on a conditional

basis . . . who has had such status terminated . . . is deportable.”

[3] Finally, § 237(a)(1)(H) (the “fraud waiver”) allows the

Attorney General to waive “[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 [the fraud provision]” for any alien

who is the spouse, parent, or child of a U.S. citizen or permanent resident and who was “otherwise admissible” at the time

of admission.7“ ‘[O]therwise admissible’ means not exclud7The waiver provision provides in full: 

(H) Waiver authorized for certain misrepresentations

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

(other than an alien described in paragraph (4)(D) [participants in

Nazi persecution, genocide, or torture]) who — 

5710 VASQUEZ v. HOLDER
able on some ground other than the entry fraud.” CoronaMendez v. Holder, 593 F.3d 1143, 1146-47 (9th Cir. 2010)

(citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 31-32 (1996)).

The effect of the fraud waiver “is to transform an individual

who enters the United States with an invalid immigrant visa

to the status of one who entered as a nonpreference immigrant, despite the fact that a valid immigrant visa would never

have been available to the individual at the time of entry.”

Braun v. INS, 992 F.2d 1016, 1018 (9th Cir. 1993). Enacted

“as a humanitarian gesture to preserve families comprised in

part of United States citizens or lawful permanent residents,”

id. (citing INS v. Errico, 385 U.S. 214, 225 (1966)), the fraud

waiver statute does not provide any statutory criteria governing the grant or denial of the waiver.

The question that concerns us here, then, is whether the

fraud waiver applies to removal based on the termination of

conditional permanent residence, where the reason the alien’s

status was terminated was that the Attorney General found the

qualifying marriage was “entered into for the purpose of procuring an alien’s admission as an immigrant.” § 216(d)(1)(A).

(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 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. 

A waiver of removal for fraud or misrepresentation granted under

this subparagraph shall also operate to waive removal based on

the grounds of inadmissibility directly resulting from such fraud

or misrepresentation. 

INA § 241(a)(1)(H), 8 U.S.C. § 1251(a)(1)(H) (1994), amended by Pub. L.

No. 104-208, §§ 305, 308, 110 Stat. 3009 (1996) (redesignating INA

§ 241 as § 237 and making other amendments). 

VASQUEZ v. HOLDER 5711
[4] We note at the outset that the fraud waiver provision

does not limit its coverage to the ground of removal contained

in subparagraph 237(a)(1)(A) (making deportable aliens who

were inadmissible at the time of admission). We so conclude

for two reasons:

First, § 237(a)(1)(H) provides that “[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 [the fraud provision] . . .

may . . . be waived . . . .” (emphasis added). “[T]his paragraph” refers to § 237(a)(1), which sets out six grounds of

removal under the heading “Inadmissible at time of entry or

of adjustment of status or violates status.” If relief under the

fraud waiver were limited to subparagraph 237(a)(1)(A) (the

only provision that explicitly makes deportable aliens inadmissible at the time of admission), then Congress would not

have used the plural form, “provisions,” and it likely would

have specified the single subparagraph to which it was referring. 

[5] Second, in addition to referring to “provisions” in the

plural, Congress used the words “relating to” — “provisions

. . . relating to the removal of aliens . . . on the ground that

they were inadmissible at the time of admission” on fraud

grounds. § 237(a)(1)(H) (emphasis added). “The phrase ‘relating to,’ as defined by the Supreme Court, means ‘to stand in

some relation to; to have bearing or concern; to pertain; refer;

to bring into association with or connection with.’ ” United

States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (quoting

Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992)).

Consistently with this definition, we have construed “relating

to” language broadly, including in the INA. See id. (construing the phrase “relating to . . . sexual abuse” in 18 U.S.C.

§ 2252A(b)(1)); Luu-Le v. INS, 224 F.3d 911, 915-16 (9th

Cir. 2000) (interpreting the phrase “relating to a controlled

substance” in INA § 241(a)(2)(B)(i)). By its terms, then, the

waiver covers not only subparagraph 237(a)(1)(A), which

5712 VASQUEZ v. HOLDER
provides for the removal of aliens on the ground that they

were inadmissible at the time of admission, including aliens

who sought to procure admission by fraud, but also any other

provisions of paragraph 237(a)(1) bearing on or connected to

the removal of aliens on that ground. 

With that background, the issue we must address becomes

more focused: whether removal for termination of an alien’s

status upon a finding of marriage fraud under subparagraph

237(a)(1)(D) relates to, or bears on, “the removal of aliens . . .

on the ground that they were inadmissible at the time of

admission as aliens described in [the fraud provision],” as

provided by § 237(a)(1)(H). 

[6] The BIA did not frame the pivotal question in this manner. Instead, in holding that the fraud waiver was not available

to Vasquez, the BIA relied on Matter of Gawaran for the

broad proposition that “a section 237(a)(1)(H) waiver for

inadmissibility due to fraud or misrepresentation is unavailable to waive a separate charge of removability based on the

termination of the alien’s conditional resident status.” The

BIA read Gawaran too broadly, as that case, properly understood, does not apply to the circumstances of this case, for

reasons we now explain.8

We begin by looking closely at Gawaran. The petitioner in

8Although unpublished decisions of the BIA are not entitled to deference under Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), see Choin

v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008), we give them Skidmore

deference, “entitling the interpretation ‘to a respect proportional to its

power to persuade.’ ” Id. (quoting Garcia-Quintero v. Gonzales, 455 F.3d

1006, 1014 (9th Cir. 2006) (applying the deference scheme laid out in

Skidmore v. Swift & Co., 323 U.S. 134 (1944))). Here, the portion of the

BIA decision holding Vasquez ineligible for a fraud waiver consists of a

single sentence citing to Matter of Gawaran, without addressing the distinctions between this case and Gawaran. The BIA’s interpretation therefore has little “inherent strength,” Choin, 537 F.3d at 1120, and we accord

it minimal deference. 

VASQUEZ v. HOLDER 5713
Gawaran, Josefina Gawaran, was married to a citizen of the

Philippines. She later married a U.S. citizen but had never

divorced her first husband. On the basis of the second, invalid

marriage, she entered this country as a conditional permanent

resident and soon gave birth to a child. A year after her

arrival, her U.S. citizen husband filed to annul their marriage.

The INS discovered Gawaran’s bigamous marriage and

charged her as deportable because “excludable by the law

existing at the time of . . . entry,” as an individual who entered

without a valid immigrant visa or a valid labor certification.

91 F.3d at 1333.

As it turned out, Gawaran also failed to file a joint petition

to remove the conditions of residence before the second anniversary of her admission.9

 As a result, the INS terminated her

status and lodged an additional charge of deportability against

her, stating that she “was deportable as an alien whose conditional permanent resident status was terminated because

Gawaran did not file a petition to remove the conditional

nature of her permanent resident status before . . . the second

anniversary of her admission for permanent residence.” Id. at

1334.

At the time of Gawaran’s case, the fraud waiver, then

§ 241(f), allowed the Attorney General to waive “[t]he provisions of this section relating to the deportation of aliens within

the United States on the ground that they were excludable at

the time of entry as aliens who have sought to procure or have

procured visas or other documentation . . . by fraud or misrepresentation,” where the alien was the spouse, parent, or child

of a U.S. citizen or permanent resident and was “otherwise

admissible” at the time of entry. INA § 241(f), 8 U.S.C.

§ 1251(f) (1988).10 In a precedential opinion, the BIA consid9Although Gawaran did not apply for a hardship waiver under

§ 216(c)(4), it appears she would have been eligible for one. 

10The fraud waiver provision has been amended since we decided

Gawaran, but its basic structure remains unchanged. In 1996, Congress

5714 VASQUEZ v. HOLDER
ered whether the fraud waiver, if granted, would waive both

charges of deportability against Gawaran — that is, not only

the charge that she was excludable at the time of entry

because she entered with invalid documents but also the

charge that she was deportable because her conditional permanent resident status had been terminated. Concluding that

it would not, the BIA noted that “the Service did not allege

any fraud or misrepresentation in connection with the [termination of status] charge, nor was proof of fraud or misrepresentation required in order to sustain the charge of

deportability.” Gawaran, 20 I. & N. Dec. at 941. 

On a petition for review, we agreed with the BIA. We

observed that the fraud waiver at that time applied “to aliens

who were ‘excludable upon entry.’ ” 91 F.3d at 1334. As the

second charge of deportability against Gawaran was based on

her failure to file a joint petition before the second anniversary of her admission, we reasoned that the failure to file the

petition could not have made Gawaran “excludable upon

entry” two years earlier. Id. at 1335. We therefore considered

termination of status upon failure to file a petition a “separate

and independent ground for deportability” to which the fraud

waiver did not apply. Id. Our holding was grounded in part on

Reid v. INS, 420 U.S. 619, 623 (1975), in which the Supreme

Court held entry without inspection an independent ground of

deportability not reached by the (then-nondiscretionary) fraud

waiver, because the question whether an alien presented himself for inspection was “quite independent[ ] of whether the

alien was excludable at the time of his arrival.” 420 U.S. at

623.

Although the language of the pertinent statutory provisions

has changed slightly since we decided Gawaran, none of

substituted “removal” for “deportation,” “inadmissible” for “excludable,”

and “admission” for “entry.” See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Title III,

§ 308, 110 Stat. 3009-614. 

VASQUEZ v. HOLDER 5715
those changes are material to the issue there decided, so the

holding of Gawaran remains binding precedent. But this case

presents altogether different circumstances from those we

confronted in Gawaran — the very circumstances, indeed,

expressly excepted by the BIA in its Gawaran opinion. 20 I.

& N. Dec. at 941. Vasquez’s conditional permanent resident

status was terminated not because she failed to file a joint

petition but because the Attorney General determined that her

marriage to Wilfredo Vasquez — which occurred before

Vasquez left the Philippines — was entered into for immigration purposes. Thus, unlike in Gawaran, “the Service did . . .

allege . . . fraud or misrepresentation in connection with [its

termination of Vasquez’s status], [and] proof of fraud or misrepresentation [was] required in order to sustain the charge of

deportability.” Id. Also, unlike the Attorney General’s determination that Gawaran had failed to file a petition at the

proper time, the determination that Vasquez had committed

marriage fraud did go directly to the question whether she was

admissible at the time of admission: it meant that she was not,

by operation of the fraud provision.11 § 212(a)(6)(C)(i). 

11The BIA has long held that “[a] marriage that is entered into for the

primary purpose of circumventing the immigration laws, referred to as a

fraudulent or sham marriage, [does not] enabl[e] an alien spouse to obtain

immigration benefits.” Matter of Soriano, 19 I. & N. Dec. 764, 765 (BIA

1988); see Matter of Laureano, 19 I. & N. Dec. 1, 2 (BIA 1983); Matter

of McKee, 17 I. & N. Dec. 332, 333 (BIA 1980); see also Lutwak v.

United States, 344 U.S. 604, 611-612 (1953) (“The common understanding of a marriage, which Congress must have had in mind when it made

provision for ‘alien spouses’ in the War Brides Act, is that the two parties

have undertaken to establish a life together and assume certain duties and

obligations. Such was not the case here . . . . Thus, when one of the aliens

stated that he was married, and omitted to explain the true nature of his

marital relationship, his statement did, and was intended to, carry with it

implications of a state of facts which were not in fact true.”); Johl v.

United States, 370 F.2d 174, 177 (9th Cir. 1966) (following Lutwak and

upholding an indictment for conspiracy to obtain an immigration document by fraud where the defendant allegedly married solely for the purpose of obtaining permanent resident status). 

5716 VASQUEZ v. HOLDER
[7] We conclude that in Vasquez’s case, and in any other

case in which the Attorney General admits an alien into the

United States as a conditional permanent resident based on

her marriage to a U.S. citizen but later terminates that status

upon a finding of marriage fraud, the termination of status

ground of removal does “relat[e] to the removal of aliens . . .

on the ground that they were inadmissible at the time of

admission” as aliens who sought to procure admission by

fraud. Both the termination of status and the finding of inadmissibility result from a single determination by the Attorney

General that the qualifying marriage was entered into for the

purpose of obtaining admission as an immigrant.

§ 237(a)(1)(H). Thus, whenever the Department finds that a

conditional permanent resident has committed marriage fraud

and charges her with removability on the ground that she was

inadmissible at the time of admission as an alien who sought

to procure admission by fraud, it will also be able to charge

her as removable because her status has been terminated, as

it did here. The two grounds are thus essentially coterminous

and certainly “relate to” one another. 

That Vasquez’s status was terminated two years after her

admission as a conditional permanent resident does not

detract from this conclusion. The reason permanent residence

based on marriage is conditional is that the passage of two

years provides the INS with additional evidence useful in

ascertaining whether the original admission was premised on

a bona fide marriage. The “central question” in determining

whether an alien “entered into her marriage in good faith, and

not for the purpose of procuring an immigration benefit, . . .

[remains] whether she and [her spouse] intended to establish

a life together at the time they were married.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004) (emphasis added);

see Bu Roe v. I.N.S., 771 F.2d 1328, 1331 (9th Cir. 1985) (“A

marriage is a sham if the bride and groom did not intend to

establish a life together at the time they were married.”); see

also Mendes, 20 I. & N. Dec. at 835 (discussing the system

of conditional permanent residence established by the ImmiVASQUEZ v. HOLDER 5717
gration Marriage Fraud Amendments of 1986 (IMFA), Pub.

L. No. 99-639, 120 Stat. 3537); see generally Vonnell C. Tingle, Immigration Marriage Fraud Amendments of 1986:

Locking In by Locking Out?, 27 J. FAM. L. 733 (1989) (same).

If the Attorney General determines that the actions of the purported married couple during the two-year conditional period

demonstrate that the qualifying marriage was never bona fide

but was entered into for immigration purposes, then the

admission was unlawful and the alien inadmissible at the time

of entry as an alien who sought to procure admission into the

United States by fraud.12 Put another way, there is, in this

instance, only one marriage directly at issue, and it occurred

before Vasquez came to this country. If it was “entered into”

for immigration purposes, that occurred in the Philippines,

and Vasquez only was allowed into the United States because

she concealed the true nature of her marriage.

Thus, unlike termination of status upon failure to file a joint

petition, termination of status upon a finding of marriage

fraud is not “separate and independent” from inadmissibility

at the time of admission. Gawaran, 91 F.3d at 1335. Instead,

it results directly from fraud at the time of admission, precisely the same fraud that made the alien inadmissible at the

time of admission as charged by the INS. In the language used

at the time of Gawaran, termination of status upon a finding

of marriage fraud means that the alien was “excludable on

entry.” Id.

[8] In sum, § 237(a)(1)(D), providing that aliens whose

conditional permanent resident status has been terminated are

deportable, is a “provision[ ] . . . relating to the removal of

12We do not consider here cases in which the alien gained admission

into the United States on some basis other than marriage but later married

and then adjusted her status to that of a conditional permanent resident.

We address only Vasquez’s situation, in which the basis for admission was

the fraudulent marriage, and the Service did — or could have — charged

the alien with removability under § 237(a)(1)(A). 

5718 VASQUEZ v. HOLDER
aliens . . . on the ground that they were inadmissible at the

time of admission” where the termination is premised on

fraud. Aliens removed for such a termination are therefore eligible for the fraud waiver provided for in § 237(a)(1)(H).

If the result were otherwise and the fraud waiver did not

cover the termination of status ground of removal in this case,

then the agency could effectively remove marriage fraud from

the category of frauds covered by the waiver. The agency

could do so by choosing always to charge removability under

§ 237(a)(1)(D), rather than, or, as here, in addition to,

§ 237(a)(1)(A), the other available charging section. The

Supreme Court and this court have construed the fraud waiver

in other circumstances to avoid similar results. 

In Errico, 385 U.S. at 217, the Supreme Court observed

that the fraud waiver “cannot be applied with strict literalness” or it would not accomplish its purpose, because an alien

excludable because of fraud or misrepresentation in procuring

a visa would necessarily be deportable for other reasons as

well (e.g., entering with a defective visa).13 The Court held

that where the agency could have proceeded under former

§ 212(a)(19) (making excludable an alien who seeks to procure entry by fraud) but chose instead to charge the alien

under former § 211(a) for failing to comply with quota

requirements, the waiver remained available.14 Id. at 222-23.

13At that time, the fraud waiver, then § 241(f), provided: 

The provisions of this section relating to the deportation of

aliens within the United States on the ground that they were

excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into

the United States by fraud or misrepresentation shall not apply to

an alien otherwise admissible at the time of entry who is the

spouse, parent, or a child of a United States citizen or of an alien

lawfully admitted for permanent residence. 

8 U.S.C. § 1251(f) (1964). 

14In Reid, the Supreme Court construed Errico narrowly and held that

the fraud waiver did not apply to grounds of inadmissibility other than the

VASQUEZ v. HOLDER 5719
We considered a similar question in Cacho v. INS, 547 F.2d

1057 (9th Cir. 1976) — whether the fraud waiver reached the

ground of excludability provided in former § 212(a)(20),

making excludable an alien who lacks the documents required

under § 211(a). We held that it must: “To hold that [the fraud

waiver] forgives the § 212(a)(19) and § 211(a) bases for

exclusion but denies forgiveness to that provided by

§ 212(a)(20) results in giving the Service the power to write

[the waiver] off the books by a discriminating choice between

available charging sections.” Id. at 1061. 

Following Errico, Reid, and Cacho, Congress has made

clear through a series of amendments that the fraud waiver

applies to removal based on grounds of inadmissibility

directly resulting from the fraud or misrepresentation: First,

Congress both (1) excluded particular categories of inadmissibility (regarding labor certifications, visas, and quota restrictions) from the requirement that an alien be “otherwise

admissible”; and (2) specified that the fraud waiver operated

to waive those grounds of inadmissibility as well. See Immigration & Nationality Act Amendments of 1981, Pub. L. No.

97-116, § 8, 95 Stat. 1611, 1616 (1981). Then, in 1990, Congress amended the waiver provision to provide that it covers

not just the grounds of inadmissibility specifically excepted

from the “otherwise admissible” requirement but also any

“grounds of inadmissibility at entry directly resulting from

such fraud or misrepresentation.” Immigration Act of 1990,

Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5079 (1990).

These amendments corrected the specific problem we perceived in Cacho, but the problem persists in another form:

Here, by lodging an additional charge against Vasquez late in

her removal proceedings, the DHS attempted to “write [the

fraud provision. 420 U.S. at 630. As noted below, however, Congress

responded by amending the waiver provision to make clear that the waiver

applies to removal based on grounds of inadmissibility directly resulting

from the fraud or misrepresentation. 

5720 VASQUEZ v. HOLDER
fraud waiver] off the books.” Cacho, 547 F.2d at 1061. The

agency could — and did — initially proceed under

§ 237(a)(1)(A), charging that Vasquez was inadmissible at

entry because of marriage fraud. It denied Vasquez’s application for an extreme hardship waiver under § 216(c)(4)

because, it said, she had filed the joint petition necessary to

remove the conditions on residence and was therefore ineligible for a waiver under that section. Then, when IJ Smith continued Vasquez’s removal proceedings so that she could apply

for the fraud waiver available for removals premised on inadmissibility due to fraud or misrepresentation at entry, the

agency lodged the additional charge — based on exactly the

same underlying facts as the earlier charge — that she was

removable because her conditional permanent resident status

had been terminated, and argued that Vasquez thereby

became ineligible for a fraud waiver under Gawaran. The

substance of the agency’s charge under the inadmissibility

and the termination charge was just the same — that Vasquez

had been admitted to this country on the basis of marriage, but

the marriage was not bona fide. Congress designed the fraud

waiver for the humanitarian purpose of forgiving fraud at

entry for immigrants with close family ties in the United

States. There is no indication it intended the availability of the

waiver to be cut off by such charging machinations.

Nor is there any reason to believe that when Congress

passed the Immigration Marriage Fraud Amendments of 1986

and instituted the system of conditional permanent residence

— including the new ground for removal based on termination of conditional permanent resident status — it intended to

make the fraud waiver unavailable to immigrants who committed marriage fraud.15 There was no need for Congress to

create a new waiver for aliens whose joint petitions were

15In a case involving a sham marriage used to obtain permanent resident

status before 1986, we held that “it is clear that [the fraud waiver] permits

relief from a fraudulent marriage.” Virk v. INS, 295 F.3d 1055, 1059 (9th

Cir. 2002). 

VASQUEZ v. HOLDER 5721
denied on the merits because the general fraud waiver, setting

forth its own particular requirements, already existed. The

hardship waiver provision in section 216 therefore addressed

only aliens who failed to file a joint petition, not those who

filed a petition and had it adjudicated but denied on fraud

grounds. In all likelihood, Congress assumed the existing

fraud waiver would continue to apply to marriage fraud, as it

applies to all other species of fraud by which admission is

gained to the United States. Our analysis of the statutory “relating to” language so indicates, precluding the BIA’s conclusion that Congress singled out marriage fraud as the only kind

of fraud not fully covered by the fraud waiver.

[9] For all these reasons, we conclude that in the circumstances that obtain here — that is, where the basis for termination of conditional permanent residence is that the marriage

was not bona fide — the termination of status ground of

removal provided in § 237(a)(1)(D) is “relat[ed] to” the

removal of aliens on the ground that they were inadmissible

at the time of admission as aliens who sought to procure

admission by fraud. We reject the BIA’s contrary holding,

based on an inaccurate reading of Gawaran, and hold that

Vasquez was eligible for a fraud waiver under § 237(a)(1)(H).

2. Discretionary Denial

In addition to grounding its ruling on the extension of

Gawaran we have disapproved, the BIA also affirmed the

alternative IJ holding denying Vasquez’s application for a

fraud waiver as a matter of discretion. Although we do not

have jurisdiction to review the discretionary denial of a fraud

waiver, we do “have jurisdiction . . . to review the statutory

eligibility elements under § 237(a)(1)(H),” San Pedro v. Ashcroft, 395 F.3d 1156, 1157-58 (9th Cir. 2005), as we may

review “constitutional claims or questions of law.” INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

IJ Yam, the last IJ who ruled in Vasquez’s case, addressed

only Vasquez’s eligibility for a fraud waiver, not her eligibil5722 VASQUEZ v. HOLDER
ity for the extreme hardship waiver available where the joint

petition requirement is not met. IJ Smith had already held that

Vasquez “does not have the benefit of . . . a hardship waiver”

because “a joint petition was filed and it was denied.” The

only issue before IJ Yam was whether to grant the fraud

waiver, as IJ Yam recognized at the outset of her opinion,

stating, under the heading “Statutory Eligibility for INA

237(a)(1) Waiver,” that “[r]espondent seeks a waiver under

Section 237(a)(1)(H)[ ] of the Act,” and then quoting that

entire section. 

Addressing that question, IJ Yam ruled, first, that Vasquez

was no longer eligible for the fraud waiver because the INS

had added to its charge the termination ground for removal;

we have held that ruling erroneous. IJ Yam went on to hold,

in the alternative, that she would deny the fraud waiver were

Vasquez eligible for it. Nowhere in her opinion does IJ Yam

cite to or quote § 216(c)(4), the waiver provision applicable

to failure to file a joint petition for removal of conditional status, and, notably, nowhere does she use the term “extreme

hardship” used in that provision (emphasis added).

IJ Yam’s oral decision does evidence confusion about the

parameters of the fraud waiver, however, as she refers repeatedly to it — the only waiver before her — as a “hardship waiver.”16 Although there are several statutory eligibility criteria

for a fraud waiver — the alien must be the spouse, parent,

son, or daughter of a U.S. citizen or permanent resident; must

have been in possession of an immigrant visa or the equivalent at the time of admission; and must have been otherwise

admissible, with certain exceptions — none requires that an

alien show hardship. § 237(a)(1)(H). Although the IJ may

consider hardship in exercising discretion regarding whether

to grant a fraud waiver to an eligible alien, there is no require16The BIA states that IJ Yam said “she would not find extreme hardship.” That is incorrect. IJ Yam spoke only of “hardship,” not “extreme

hardship.” 

VASQUEZ v. HOLDER 5723
ment that she do so, or that the alien prove that a particular

quantum of hardship would result from her removal. See In re

Tijam, 22 I. & N. Dec. 408, 412-13 (BIA 1998) (“The question whether to exercise discretion favorably necessitates a

balancing of an alien’s undesirability as a permanent resident

with the social and humane considerations present . . . .

Favorable considerations may include . . . evidence of hardship to the alien or her family if deportation occurs . . . .”).

IJ Yam’s conclusion that because Vasquez knew she was in

removal proceedings when she married her second husband,

she “should not be entitled to any waiver for purposes of subsequent hardship application” suggests she believed, erroneously, that Vasquez was required to demonstrate hardship to

receive a fraud waiver.

The BIA’s decision only compounded the confusion. It

upheld IJ Smith’s ruling that Vasquez was ineligible for an

extreme hardship waiver to remove the conditions on residence, rejecting IJ Yam’s suggestion that Vasquez’s joint

petition had been withdrawn rather than adjudicated. Then,

although only the fraud waiver was before IJ Yam, the BIA

held that even if Vasquez had been eligible to seek an extreme

hardship waiver, “as noted in the January 28, 2004, decision

of the Immigration Judge [IJ Yam’s decision], she would not

find extreme hardship and she would deny such petition as a

matter of discretion.” In so stating, the BIA misunderstood

which waiver application IJ Yam considered and discretionarily denied; as we have explained, IJ Yam referred to and

considered only the fraud waiver, although she misunderstood

its requirements. Later, the BIA opinion states, “We are not

persuaded . . . that the Immigration Judge abused her discretion in finding that the waivers under section 216(c)(4)(A)

[the extreme hardship waiver] and 237(a)(1)(H) [the fraud

waiver] should be denied.” (emphasis added). But — again —

there were two IJs; IJ Smith held the extreme hardship waiver

inapplicable and did not exercise her discretion, even in the

alternative, regarding the extreme hardship waiver of the peti5724 VASQUEZ v. HOLDER
tion requirement, and only the fraud waiver was at issue

before IJ Yam.

[10] In sum, IJ Yam misunderstood the statutory requirements for a fraud waiver, and the BIA did not correct that

error. We therefore remand to the agency to apply the correct

legal standard in considering, in its discretion, Vasquez’s

application for a fraud waiver.

CONCLUSION

The BIA did not err in holding that Vasquez is ineligible

to apply for an extreme hardship waiver under § 216(c)(4).

Vasquez is eligible to apply for a fraud waiver under

§ 237(a)(1)(H), as her conditional permanent resident status

was terminated upon a finding of marriage fraud. In these circumstances, we conclude that the fraud waiver can waive

removal based on the termination of status. Finally, we

remand to the BIA to determine, applying the proper legal

standard, whether Vasquez’s application for a fraud waiver

should be denied in the exercise of discretion.

PETITION GRANTED; REMANDED for further proceedings.

VASQUEZ v. HOLDER 5725