Bador v. Garland

22-6492
Bador v. Garland
United States Court of Appeals
For the Second Circuit
August Term 2023
Argued: February 13, 2024
Decided: July 11, 2024
No. 22-6492
S HLOMO BADOR ,
Petitioner,
v.
MERRICK B. G ARLAND,
U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals

-- 1 of 12 --

2
Before: K EARSE , PARK, and ROBINSON, Circuit Judges.
Shlomo Bador received conditional permanent resident status
based on his marriage to a U.S. citizen. Two years later, he and his
wife submitted a joint petition to remove the conditions on his status.
But by then, U.S. Citizenship and Immigration Services suspected that
his marriage was fraudulent. And after investigators interviewed
Bador’s wife, she withdrew her support from the joint petition.
Bador thus failed to submit a valid petition, so his conditional
permanent resident status terminated automatically.
Conditional permanent residents who lose their status are
removable, and the Department of Homeland Security sought to
remove Bador on that basis. See 8 U.S.C. § 1227(a)(1)(D). Bador has
conceded his removability. But he asks this Court to hold that he is
eligible for a waiver of removability—the “fraud waiver”—available
to certain aliens whose grounds of removability relate to being
“inadmissible at the time of admission” because they procured
benefits under the Immigration and Nationality Act by fraud or
misrepresentation. See id. § 1227(a)(1)(H).
Bador does not qualify for the fraud waiver. He was charged
as removable because his conditional permanent resident status
terminated. And his status terminated because he failed to submit a
joint petition, not because his marriage was fraudulent. Bador’s
ground of removal is thus insufficiently related to his fraud to support
application of the waiver. The petition for review is DENIED.

-- 2 of 12 --

3
K AI W. D E G RAAF, Law Office of Kai W. De Graaf, New
York, NY, for Petitioner.
JACLYN G. H AGNER , Trial Attorney (Brian Boynton,
Principal Deputy Assistant Attorney General, Civil
Division, Sabatino F. Leo, Assistant Director, on the brief ),
Office of Immigration Litigation, U.S. Department of
Justice, Washington, DC, for Respondent.
PARK, Circuit Judge:
Shlomo Bador received conditional permanent resident status
based on his marriage to a U.S. citizen. Two years later, he and his
wife submitted a joint petition to remove the conditions on his status.
But by then, U.S. Citizenship and Immigration Services suspected that
his marriage was fraudulent. And after investigators interviewed
Bador’s wife, she withdrew her support from the joint petition.
Bador thus failed to submit a valid petition, so his conditional
permanent resident status terminated automatically.
Conditional permanent residents who lose their status are
removable, and the Department of Homeland Security sought to
remove Bador on that basis. See 8 U.S.C. § 1227(a)(1)(D). Bador has
conceded his removability. But he asks this Court to hold that he is
eligible for a waiver of removability—the “fraud waiver”—available
to certain aliens whose grounds of removability relate to being
“inadmissible at the time of admission” because they procured
benefits under the Immigration and Nationality Act by fraud or
misrepresentation. See id. § 1227(a)(1)(H).

-- 3 of 12 --

4
Bador does not qualify for the fraud waiver. He was charged
as removable because his conditional permanent resident status
terminated. And his status terminated because he failed to submit a
joint petition, not because his marriage was fraudulent. Bador’s
ground of removal is thus insufficiently related to his fraud to support
application of the waiver. The petition for review is denied.
I. BACKGROUND
Shlomo Bador married for the first time in 2003. He and his
wife were both Israeli citizens and lived in Israel. Bador came to the
United States on a nonimmigrant visa in 2004, and his wife and
newborn daughter followed.
But Bador’s marriage didn’t last. 1 In September 2008, he
married his second wife, a U.S. citizen named Zina Jones. As Jones’s
spouse, Bador was entitled to apply for a green card. He and Jones
filed the necessary forms—promising, among other things, that their
marriage was genuine—and Bador received a green card in April
2009.
As an alien who adjusted to lawful permanent resident status
by marriage to a U.S. citizen, Bador’s status was initially conditional.
In March 2011, he filed a joint petition with Jones for removal of the
conditions on his status. Bador and Jones then sat for an interview
with U.S. Citizenship and Immigration Services (“USCIS”) in April
2012. But their story didn’t quite add up. Bador and Jones claimed
1 Bador testified before an Immigration Judge that his first marriage
ended in divorce, but he couldn’t remember exactly when the divorce
occurred. His application for cancellation of removal listed a divorce date
of August 12, 2008.

-- 4 of 12 --

5
that they lived together in a Manhattan apartment. But when an
immigration officer visited, he ran into Bador’s first wife, who
admitted that she—and not Jones—had lived there for at least two
years. The building’s manager confirmed this. And Jones was on
the lease for an apartment in the Bronx, where her boss thought she
lived and where the superintendent recognized her as a tenant.
USCIS interviewed Jones again in June 2013 to inquire about
these discrepancies. Jones appeared with counsel and admitted that
she had lied about living with Bador. She also withdrew her support
for the joint petition. Without Jones’s participation, USCIS deemed
the petition withdrawn.
Bador then filed a second petition. Although aliens must
ordinarily petition jointly with their U.S. citizen spouse to remove the
conditional nature of their permanent residence status, USCIS may
waive that requirement for aliens who married in good faith but
whose marriage has since terminated. 8 U.S.C. § 1186a(c)(4)(B)
(“good-faith waiver”). Bador divorced Jones shortly after she
withdrew her support from the joint petition and requested a good-
faith waiver based on the divorce. USCIS declined to waive the
joint-petition requirement—and notified Bador that his lawful
permanent resident status had been terminated—because it
concluded that he had not married Jones in good faith.
The Department of Homeland Security (“DHS”) sought to
remove Bador the following month, charging him with removability
as an alien admitted for permanent residence on a conditional basis
whose status had been terminated. Bador then appeared before an
Immigration Judge (“IJ”) and conceded his removability. But he
sought review of USCIS’s denial of the good-faith waiver. At a

-- 5 of 12 --

6
hearing before the IJ in August 2018, Bador testified that he had
married Jones in good faith. On cross-examination, he was
questioned about an investigation linking him to a South Carolina-
based marriage-fraud ring. After a recess to confer with counsel,
Bador withdrew his request for review of the good-faith waiver. The
IJ then adjourned the hearing.
When the hearing resumed, Bador moved for two forms of
relief relevant here. First, he asked the IJ to reinstate his request for
review of USCIS’s denial of the good-faith waiver. Second, in the
alternative, he requested a waiver of removability under 8 U.S.C.
§ 1227(a)(1)(H), which applies to certain aliens who procured
admission by fraud (the “fraud waiver”). When Bador’s testimony
resumed, he testified that his marriage to Jones was in fact fraudulent.
He said he had pursued the marriage to “fix” his immigration status
in the United States. He had paid Jones $15,000 to do so, plus $2,000
to a broker.
The IJ denied relief. As relevant here, she first declined to
review USCIS’s denial of the good-faith waiver and, in the alternative,
held that the good-faith waiver should be denied. The IJ then ruled
Bador ineligible for the fraud waiver—the waiver applies to aliens
charged with being inadmissible at the time of admission or
adjustment of status due to fraud or misrepresentation, but Bador was
charged as removable only because his conditional permanent
resident status had terminated.
On appeal before the Board of Immigration Appeals (“BIA”),
Bador challenged only the IJ’s denial of the fraud waiver under
§ 1227(a)(1)(H). The BIA, reviewing the IJ’s decision de novo,
agreed with the IJ. It ruled that Bador could not invoke

-- 6 of 12 --

7
§ 1227(a)(1)(H) to waive a charge of removability based on the
termination of his conditional permanent resident status due to
failure to file a joint petition. Nor could he expand that waiver’s
scope to excuse his failure to file a joint petition. The BIA thus
dismissed Bador’s appeal.
Bador now petitions this Court for review.
II. DISCUSSION
On a petition for review of a BIA decision, we review questions
of law de novo. Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).
Although the BIA’s decision supplies the basis for judicial review, we
may consider the IJ’s decision as well “when, as here, the decision of
the BIA is consistent with the decision of the IJ.” Bhagtana v. Garland,
93 F.4th 592, 593-94 (2d Cir. 2023).
A. Statutory Background
Bador’s petition implicates two statutory provisions governing
the admission and removal of aliens who marry U.S. citizens. First,
8 U.S.C. § 1186a governs the grant (and termination) of lawful
permanent resident status for such aliens. An alien who marries a
U.S. citizen is eligible for lawful permanent resident status. But that
status is initially granted only on a conditional basis. 8 U.S.C.
§ 1186a(a)(1). After two years, the alien and citizen spouse must
jointly petition for the removal of conditions. See id. § 1186a(c).2 If
2 “[D]uring the 90-day period before the second anniversary of the
alien’s obtaining the status of lawful admission for permanent residence,”
“the alien spouse and the petitioning spouse (if not deceased) jointly must
submit to the Secretary of Homeland Security . . . a petition which requests
the removal of such conditional basis and which states, under penalty of
perjury, the facts and information described in subsection (d)(1).” 8 U.S.C.

-- 7 of 12 --

8
DHS determines that the statements in a couple’s petition are true,
then the alien’s status ceases to be conditional. See id.
§ 1186a(c)(3)(A)-(B). But if DHS determines that the information is
false, or if a petitioning couple fails to appear for their interview or
fails to submit a joint petition, then the alien spouse’s status
terminates. Id. § 1186a(c)(2)(A), (3)(C). Although termination is
ordinarily automatic, the Secretary of Homeland Security has
discretion to waive the petition and interview requirements under
certain conditions. Id. § 1186a(c)(4). Relevant here, a “good-faith
waiver” provision allows the Secretary to waive the joint-petition
requirement when “the qualifying marriage was entered into in good
faith by the alien spouse, but the qualifying marriage has been
terminated . . . and the alien was not at fault in failing to [submit a
joint petition].” Id. § 1186a(c)(4)(B).
Second, 8 U.S.C. § 1227(a)(1) makes certain classes of aliens
removable. Subparagraphs (A) through (G) identify each removable
group. Two are relevant here: subparagraph (A) makes removable
“[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”; and subparagraph (D) makes removable “[a]ny
alien [with conditional permanent resident status under
§ 1186a] . . . who has had such status terminated.” Id.
§ 1227(a)(1)(A), (D). Then, subparagraph (H)—the “fraud
§ 1186a(c)(1)(A), (d)(2)(A). The required facts include an affirmation that
the couple is still validly married and that their marriage was “not entered
into for the purpose of procuring an alien’s admission as an immigrant.”
Id. § 1186a(d)(1)(A)(i).

-- 8 of 12 --

9
waiver”—provides a limited exception to the general rule of
removability. It states that:
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, . . . may,
in the discretion of the Attorney General, be waived for
any alien . . . who [meets certain conditions].
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.
Id. § 1227(a)(1)(H).3
B. Scope of the Fraud Waiver
The parties dispute whether the fraud waiver can be used to
waive a charge of removability premised on 8 U.S.C. § 1227(a)(1)(D)
(termination of conditional permanent resident status). But we need
not decide whether the fraud waiver can ever waive such a charge.
We conclude only that it is not available to Bador.
The fraud waiver is available only to aliens whose charges of
removability “relat[e] to . . . removal . . . on the ground that they were
inadmissible at the time of admission as aliens described in section
1182(a)(6)(C)(i).” Id. § 1227(a)(1)(H). Eligibility for the fraud
waiver thus depends on two independent conditions: first, the alien
3 Section 1182(a)(6)(C)(i), in turn, describes aliens “who, by fraud or
willfully misrepresenting a material fact, . . . sought to procure or [have]
procured . . . admission into the United States or other benefit provided
under [the Immigration and Nationality Act].”

-- 9 of 12 --

10
must be charged as removable because he was inadmissible at the
time of admission; 4 and second, he must have been inadmissible
because he procured (or sought to procure) admission “by fraud or
willfully misrepresenting a material fact.” Id. § 1182(a)(6)(C)(i).
The parties now agree that Bador satisfies the second condition—i.e.,
he procured lawful permanent resident status by fraud. All that
remains is to decide whether Bador was charged as removable
because he was inadmissible at the time of admission.
On the face of the statute, Bador is in a difficult position.
Subparagraph (A) of § 1227(a)(1) permits DHS to charge an alien as
removable because he was inadmissible at the time of admission.
But that is not what it did here. Instead, DHS charged Bador as
removable under subparagraph (D) because his conditional
permanent resident status had terminated. See id. § 1227(a)(1)(D).
Bador maintains that the fraud waiver isn’t so limited and that he was
inadmissible at the time of admission because he procured admission
by fraud. He thus claims to be eligible for a waiver as long as his
charge of removability “relates to” that fraud. So if DHS seeks
removal because Bador’s marriage was fraudulent, then he can seek
to waive removability using the fraud waiver no matter which basis
for removal DHS charges.
Bador relies on decisions from two of our sister circuits, Vasquez
v. Holder, 602 F.3d 1003 (9th Cir. 2010), and Acquaah v. Sessions, 874
F.3d 1010 (7th Cir. 2017). In Vasquez, the Ninth Circuit held that
4 The BIA has held that “an alien’s adjustment of status within the
United States constitutes an admission for purposes of the [fraud] waiver
at [§ 1227(a)(1)(H)].” In re Agour, 26 I. & N. Dec. 566, 570 (BIA 2015). We
assume without deciding the BIA’s interpretation is correct.

-- 10 of 12 --

11
“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 [subparagraph (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.” 602 F.3d at 1017 (last alteration in original). The Seventh
Circuit took a broader approach in Acquaah, focusing on “whether
[the] charge [of removability] is ‘relat[ed] to,’ that is, connected with
or bearing upon, a charge that the alien was inadmissible at the time
of admission by virtue of fraud.” 874 F.3d at 1018 (last alteration in
original).
Unlike Vasquez and Acquaah, however, Bador lost his
conditional permanent resident status because he failed to file a joint
petition under 8 U.S.C. § 1186a(c)(2)(A)(i). And failure to file a joint
petition in accordance with the statute terminates status regardless
whether an alien’s marriage is fraudulent. We thus cannot conclude
that Bador’s status terminated because of his fraud. Cf. Vasquez, 602
F.3d at 1010, 1013-14 (suggesting that, if Vasquez’s status had been
terminated for “fail[ing] to file a petition at the proper time,” she
would have been ineligible for a fraud waiver under In re Gawaran, 20
I. & N. Dec. 938 (BIA 1995)).
The fact that DHS denied Bador a good-faith waiver under
§ 1186a(c)(4)(B) doesn’t change the result. The good-faith waiver
grants the Secretary of Homeland Security discretion to waive an
applicant’s failure to file a joint petition if the marriage at issue “was
entered into in good faith . . . and the alien was not at fault in failing
[to file a joint petition.]” 8 U.S.C. § 1186a(c)(4)(B). Bador’s status
was terminated because of his procedural failure. The fact that the

-- 11 of 12 --

12
Secretary later declined to overlook that procedural failure because
Bador’s marriage was fraudulent cannot transform the original
termination from one premised on Bador’s failure to file a joint
petition into one premised on his inadmissibility at the time of
admission.5 He is thus ineligible for a waiver of removability under
§ 1227(a)(1)(H)’s fraud waiver.
III. CONCLUSION
For the foregoing reasons, the petition for review is denied.
5 Bador also suggests that he can use the fraud waiver in
§ 1227(a)(1)(H) to waive the joint-petition requirement in § 1186a(c), at least
insofar as his failure to file a joint petition is related to fraud. But his
interpretation is contrary to the fraud waiver’s plain text, which applies
only to “the provisions of [§ 1227(a)(1)].” 8 U.S.C. § 1227(a)(1)(H).
Instead, waiver of the joint-petition requirement is available only as
provided in § 1186a(c)(4).

-- 12 of 12 --