Ngoc Truong v. Jefferson Sessions

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS NGOC LE TRUONG, No. 13-72956

Petitioner, Agency No. A079-586-632

v. ORDER JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,* District Judge.

The memorandum disposition filed on March 30, 2018 is hereby amended

and replaced by the amended disposition filed concurrently with this order. The

amendments to the prior disposition are at page 2, lines 6-7, and page 3, lines 10-

13. With these amendments, all panel members have voted to deny the petition for

panel rehearing. No further petitions for panel rehearing or rehearing en banc will

be entertained.

SO ORDERED.

* The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NGOC LE TRUONG, No. 13-72956

v. AMENDED MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted July 10, 2017 Seattle, Washington

Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER,*** District Judge.

Ngoc Le Truong, a citizen of Vietnam, petitions for review of a Board of

Immigration Appeals (BIA) decision finding her statutorily ineligible to seek a

waiver of removability under INA § 237(a)(1)(H). 8 U.S.C. § 1227(a)(1)(H). We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation. have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.

Truong conceded a single removability ground before the immigration judge

(IJ): INA § 237(a)(1)(A), for inadmissibility at the time of adjustment of status due

to fraud. 8 U.S.C. § 1227(a)(1)(A). The BIA erred in concluding that Truong’s

entry to the country on a K-1 fiancée visa pretermitted her eligibility for a waiver

of this removability ground under INA § 237(a)(1)(H). Id. § 1227(a)(1)(H). On

the record before us, Truong appears to meet the waiver’s three statutory

requirements. She has a qualifying relative—her current U.S. citizen husband,

Brian Skaggs. Id. § 1227(a)(1)(H)(i)(I). She held an “immigrant visa or

equivalent document” at the time of her adjustment of status because “fiancé(e)

visa holders [are] similarly situated to immediate relatives” when applying for

adjustment of status. Id. § 1227(a)(1)(H)(i)(II); see Matter of Sesay, 25 I&N Dec.

431, 439 (BIA 2011). And, on this record, she appears to have been “otherwise

admissible” to the United States at the time of her adjustment of status. 8 U.S.C. §

1227(a)(1)(H)(i)(II). “[S]atisfaction of the requirements under [the statute] . . .

establishes . . . [her] eligibility for the waiver.” INS v. Yueh-Shaio Yang, 519 U.S.

26, 30-31 (1996) (emphasis in original).

The IJ and the BIA both concluded that Truong was ineligible for the fraud

waiver because she cannot adjust status to lawful permanent residence via her

marriage to Skaggs, her qualifying relative for the fraud waiver. See 8 U.S.C. §

2 1255(d); Kalal v. Gonzales, 402 F.3d 948, 951 (9th Cir. 2005). But Truong’s

ability to adjust status is irrelevant to her fraud waiver eligibility. INA §

237(a)(1)(H) “requires only a current familial relationship; it does not add a

requirement that the alien be eligible to obtain a new immigrant visa based on that

relationship.” Virk v. INS, 295 F.3d 1055, 1058 (9th Cir. 2002). The BIA erred by

“plac[ing] controlling emphasis on [Truong]’s ineligibility for an immigrant visa

based on spousal preference,” id. at 1057, and by “impos[ing] unilaterally novel

substantive requirements beyond those set forth in the immigration law itself,”

Federiso v. Holder, 605 F.3d 695, 698 (9th Cir. 2010).

Therefore, Truong is not statutorily ineligible to apply for the fraud waiver

because of her entry on a K-1 fiancée visa. We grant the petition and remand for

further proceedings consistent with this disposition.

PETITION GRANTED AND REMANDED.