Yueh-Shaio Yang v. Immigration and Naturalization Service

Petitioner, Mr. Yang, claims that the Board of Immigration Appeals abused its discretion in refusing to grant him a discretionary waiver under Section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251 (a)(1)(H) (West Supp.1994). Mr. Yang concedes that he is deportable, but argues that the BIA improperly considered impermissible factors in denying the waiver.

The BIA considered several adverse factors in declining to grant the waiver. First, the BIA seems to have considered Mr. Yang’s participation in his wife’s fraudulent entry into the country, including his taking part in sham divorces and remarriages. These activities were clearly inextricably intertwined with Mr. Yang’s own efforts to secure entry into the country and must be considered part of the initial fraud. Thus, the BIA improperly considered these acts as adverse factors.

The BIA also considered as an adverse factor the fact that Mr. Yang has submitted a fraudulent application for citizenship. The BIA apparently viewed this as a separate fraud from the initial series of frauds that allowed Mr. Yang to gain access to the country and become a lawful resident in the first place. However, in the…