Bilal Zuhdi El Shaer v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1964
BILAL ZUHDI EL SHAER
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A29-831-746)
Before: McKEE, HARDIMAN and GREENBERG, Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
June 2, 2009
(Opinion Filed: August 17, 2009 )
OPINION
McKEE, Circuit Judge
Bilal Zudhi El Shaer petitions for review of a March 3, 2008, decision of the Board of
Immigration Appeals, affirming an Immigration Judge’s order of removal. The Immigration
Judge ruled that El Shaer is statutorily ineligible for a waiver of inadmissibility and ordered his
removal. For the reasons that follow, we will deny the petition for review.
As we write primarily for the parties who are familiar with the factual and procedural
history of this case, we need not recite the facts or background of this dispute.
We must determine whether the BIA erred in ruling that El Shaer’s charge of

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removability under INA § 237(a)(3)(B)(iii), 8 U.S.C. § 1227(a)(3)(B)(iii), renders him statutorily
ineligible for a waiver of inadmissibility under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).
This is a question of law and our review is therefore de novo. McNary v. Haitian Refugee Ctr.
Inc., 498 U.S. 479, 493 (1991).
INA § 237(a)(1)(H), allows otherwise removable aliens to obtain a waiver of
inadmissibility in certain limited circumstances. El Shaer obtained conditional resident status by
entering into an admittedly fraudulent marriage. He was subsequently convicted of having
engaged in marriage fraud for the purpose of adjusting his immigration status to lawful
permanent resident. He now asserts that the crimes he pled guilty to should not disqualify him
from being considered for a waiver of inadmissibility.
The IJ held that the waiver contained in § 237 (a)(1)(H) only applied to persons who were
inadmissible pursuant to § 212(a)(6)(C)(i) of the INA, 8 U.S.C.§ 1182 (a)(6)(C)(i), and that this
did not include El Shaer. The BIA affirmed, ruling that the IJ had correctly interpreted
237(a)(1)(H) and that El Shaer’s guilty plea for violating 18 U.S.C. § 1546 made him ineligible
for the waiver he was requesting because he had been convicted of a crime that was qualitatively
different from those that are eligible for a waiver of inadmissibility. We agree. See Matter of
Jimenez-Santillano, 21 I. & N. Dec. 567, 573 (BIA 1996) (discussing the predecessor statute).
Accordingly, we will deny his petition for review.

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