BIA Limits Section 237(a)(1)(H) Waiver for Conditional Residents in Removal Proceedings  

Last Updated

October 28, 2022

The Board of Immigration Appeals, or BIA, held that INA § 237(a)(1)(H) cannot be used to waive an individual’s deportability under section 237(a)(1)(D)(i), which allows for termination of a conditional permanent resident’s status for failure to file a joint petition. The BIA also held that the 237(a)(1)(H) waiver cannot be used in lieu of, or together with, a “good faith” waiver under section 216(c)(4)(B) to waive the requirement to file a joint petition to remove the conditions on residence. Matter of Bador, 28 I&N Dec. 638 (BIA 2022).   

This case involves a noncitizen initially granted conditional resident status in 2009. His status was terminated in 2014 after his spouse withdrew her support for a previously filed joint petition to remove the conditions on residence. The noncitizen was placed into removal proceedings and conceded deportability under INA § 237(a)(1)(D)(i) for being a conditional permanent resident whose status had been terminated. He initially sought a “good faith” waiver of the joint filing requirement but later requested a fraud waiver under section 237(a)(1)(H). At a later hearing, after having previously offered testimony claiming his marriage was genuine, the noncitizen admitted that his marriage was not in fact bona fide. However, he sought a section 237(a)(1)(H) waiver in conjunction with a “good faith/divorce” waiver under section 216(c)(4)(B). The immigration judge found him statutorily ineligible for both waivers and the BIA affirmed.  

In reaching its decision, the BIA looked to two separate statutory provisions: the fraud waiver at section 237(a)(1)(H) and the discretionary waiver of the joint petition requirement under section 216(c)(4). Section 237(a)(1)(H) authorizes an immigration judge to grant a discretionary waiver of deportation to a noncitizen who is removable under INA § 237(a)(1)(A) for being inadmissible at the time of admission for fraud or willful misrepresentation of a material fact under INA § 212(a)(6)(C)(i). The applicant for a 237(a)(1)(H)(i) waiver must establish that he or she is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, or LPR. For those statutorily eligible for the waiver, this can be a way to remedy the underlying defect in their LPR status and pave the way for naturalization, particularly since once granted, the waiver renders the LPR status valid from the date of the initial grant. At least two circuit courts have held that 237(a)(1)(H) waivers are available to conditional permanent residents in addition to other LPRs in certain circumstances. Vasquez v. Holder, 602 F.3d 1003, 2008-19 (9th Cir. 2010); Acquaah v. Sessions, 874 F.3d 1010, 1015-1019 (7th Cir. 2017). 

However, in the present case the agency found the respondent ineligible for an INA § 237(a)(1)(H) waiver since he was separately deportable under 237(a)(1)(D) (as a conditional resident whose status had been terminated). The respondent argued that the 237(a)(1)(H) waiver should waive both the fraud and the termination of his residency because the acquisition of his residency was tied to the underlying fraud. However, the BIA rejected this argument, relying on an earlier precedential decision pertaining to similar provisions of the former statute. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), aff’d Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996). The BIA held that “[t]he fraud waiver at section 237(a)(1)(H) does not supplant the joint petition requirement in section 216, nor does it excuse the respondent’s failure to establish that his marriage was entered into in good faith.” Bador, 28 I&N Dec. at 644.

Ultimately, the BIA held that a 237(a)(1)(H) waiver does not waive a noncitizen’s deportability under 237(a)(1)(D) where the conditional permanent residence is terminated for failure to file a joint petition, a reason “separate and independent” from fraud. Id. at 645. The BIA also found that the 237(a)(1)(H) waiver could not be used in conjunction with a “good faith” waiver of the joint filing requirement under section 216(c)(4)(b), since the respondent in this case admitted that he entered his marriage for the sole purpose of obtaining an immigration benefit.  


The BIA’s decision limits the ability of practitioners to seek 237(a)(1)(H) waivers for conditional resident clients in removal proceedings. Arguably, the decision does not eliminate the possibility that some conditional residents can continue to seek 237(a)(1)(H) waivers. However, it limits the class of conditional residents who may be eligible for these waivers. Specifically, the BIA focused on the fact that the noncitizen’s conditional resident status was terminated for failure to file a joint petition. In Bador, a joint petition was initially filed, but the U.S. citizen ultimately withdrew her support for the petition, which under the law is treated as a failure to file.   

However, the Ninth Circuit has held that a conditional resident whose joint petition was denied on the merits for marriage fraud could continue to seek a 237(a)(1)(H) waiver in proceedings. Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010). In the Vasquez case, a joint petition was filed, and the U.S. citizen never withdrew support for the petition. This crucial difference led the Ninth Circuit to conclude that the charge of removability under 237(1)(A)(D) sufficiently “related to” the fraud at the time of entry to the U.S. such that the petitioner in Vasquez was eligible for a 237(a)(1)(H) waiver. Vasquez, 602 F.3d at 1017. The BIA found the Vasquez case “inapposite and unpersuasive” for the factual circumstances of Bador, leaving room for practitioners to continue to argue that a 237(a)(1)H) waiver remains available to conditional residents whose jointly filed petition was denied based on fraud. Bador, 28 I&N Dec. at 645. 

What other relief might be available to an individual in Mr. Bador’s situation — a conditional resident whose status was procured by fraud? Section 216(c)(4) provides three separate and independent bases for a waiver of the joint filing requirement: termination of the marriage, battery or extreme cruelty, and extreme hardship. However, only the extreme hardship waiver lacks a requirement that the underlying marriage be entered into in good faith. INA § 216(c)(4); 8 CFR § 1216.5(a)(i)-(iii). Therefore, conditional residents who cannot meet the joint filing requirements, or prove that the marriage was entered into in good faith, may still be able to remove the conditions on their residency and retain their permanent resident status if they can establish extreme hardship. The waiver request is filed first with U.S. Citizenship and Immigration Services and can then be renewed before the immigration judge.  

For more on sham marriages and marriage fraud, see CLINIC’s practice advisory available at: