Petitions for Review of Orders of the Board of Immigration Appeals. No. A98-750-662.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 28, 2007
Before ROVNER, WOOD, and EVANS, Circuit Judges.
This case highlights the obstacles that foreigners face in navigating arcane procedures intended to reunite them with their American-citizen spouses in the United States. Here the apparent hurdle was a form that only a consummate bureaucrat could earnestly defend. Christiana Atunnise, a Nigerian citizen, initially tried to sidestep the rules in 1998 when she used a fraudulent passport in a misguided attempt to join her husband, a Nigerian citizen who was living lawfully in Chicago. She was caught at the airport and sent back to Nigeria the very next day. As a consequence, Atunnise was statutorily barred from entering the United States for a period of five years, and even then she would forever need the Attorney General's permission-a "waiver of inadmissibility" in immigration jargon-to gain admission. Atunnise waited out the five-year period, and soon after, in 2004, her husband became a United States citizen. He promptly petitioned immigration authorities for permission to bring Atunnise and their five-year-old daughter to live with him in the United States, and after that petition was approved, Atunnise went to the United States consulate in Lagos, Nigeria, to obtain a visa. The consular officer gave her a visa, but because of the manner in which Atunnise answered one of the questions on the visa application, she was not told that consular officers are not supposed to give someone in her position a visa without a waiver of inadmissibility. Atunnise maintains that she was confused by the application, which we agree would confuse anyone. When Atunnise took her visa and flew to the United States with her daughter in April 2006, an immigration officer at O'Hare International Airport realized that she also needed, but did not have, a waiver of inadmissibility. She has been in jail ever since, all because immigration officials have taken the position that even though she might have qualified for a waiver of inadmissibility, she has lost her opportunity to apply. That position, we conclude, is premised on a mistaken view of the law. Accordingly, we remand her case to the Board of Immigration Appeals for further proceedings.
After Atunnise's husband became a United States citizen in 2004, he filed a Petition for Alien Relative, Form I-130, seeking permission to bring Atunnise and their daughter, Ifeoluwa, to join him in Chicago. An I-130 petition allows a citizen or permanent resident to request that the Department of Homeland Security ("DHS") classify certain alien family members, including a spouse and children, as "immediate relatives" who thus become eligible for immigrant visas without regard to normal quotas. DHS approved the I-130 petition in December 2005. Three months later, in March 2006, Atunnise went to the American consulate in Lagos to apply for a K-3 nonimmigrant visa. A K-3 visa allows a beneficiary of an I-130 petition to enter the United States to await the availability of an immigrant visa. See 8 U.S.C. § 1101(a)(15)(K)(ii). Atunnise also applied for an equivalent visa, a K-4, for her daughter. See id. § 1101(a)(15)(K)(iii).
The general, nonimmigrant-visa application given to Atunnise, Form DS-156, includes a series of questions in bulletpoint form. Although most of the bulletpoints incorporate multiple questions, and all of them include compound questions, the applicant must respond to each bulletpoint by checking a single box "yes" or "no." There is no means of giving independent answers to the varied questions within the same bulletpoint. One of the bulletpoints poses the following questions:
Have you ever been refused admission to the U.S., or been the subject of a deportation hearing, or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?
The form permits the applicant to give one yes-or-no response to these unrelated questions, and it neither invites nor provides any space for the applicant to explain an answer. Atunnise had been subjected to expedited removal in 1998 after she attempted to enter the United States with a fraudulent passport-but she had never attended a public school in the United States. She checked the "no" box. The consular officer then overlooked the 1998 removal (we are not told whether the consular officer took steps to access that information through DHS records) and, as a result, did not inform Atunnise that she needed a waiver of inadmissibility to enter the United States. And so she did not apply for one, even though as a K-3 applicant she may have been eligible for a waiver of inadmissibility under § 212(d)(3) of the Immigration and Nationality Act ("INA"). That provision authorizes the Attorney General to waive inadmissibility for a nonimmigrant. 8 U.S.C. § 1182(d)(3)(A); 8 C.F.R. § 212.7(a)(1)(i). Had the consular officer noticed the bar to admissibility, the officer presumably would have alerted Atunnise that she needed to file, in addition to her visa application, an application for a waiver under § 212(d)(3). See 8 C.F.R. § 212.7(a)(1)(i). But because of the oversight, the consular officer issued visas to Atunnise and her daughter, and Atunnise left the consulate without applying for a waiver.
Less than two weeks later, on April 7, 2006, Atunnise and the child arrived at O'Hare and presented their passports and visas to an immigration officer. After a fingerprint check alerted the officer to her 1998 removal, the officer asked Atunnise whether she had ever been denied admission to the United States. She truthfully answered that she had and explained the circumstances. Accordingly, the officer concluded that Atunnise could not be admitted without a waiver of inadmissibility. And since she did not have one, the officer presumed that her K-3 visa was invalid. Atunnise was detained and taken to a jail in McHenry County, Illinois, where she has remained ever since. The child was released to her father's care.
DHS issued a notice to appear charging that Atunnise was subject to removal under § 212(a)(6)(C)(i) of the INA, which provides that "any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."
8 U.S.C. § 1182(a)(6)(C)(i). The supporting allegation specified that on April 7, 2006, Atunnise had attempted to enter the United States by fraud or willful misrepresentation because, supposedly, she had failed to disclose her 1998 expedited removal when she applied in Lagos for her K-3 visa. DHS filed an additional charge pursuant to § 212(a)(7)(A)(i) of the INA, which provides that an immigrant who does not possess a valid entry document is inadmissible. See 8 U.S.C. § 1182(a)(7)(A)(i). The supporting allegation specified that on April 7, 2006, Atunnise presented herself for admission without a valid entry document; i.e., DHS asserted that the K-3 visa given to Atunnise in Lagos was invalid. Atunnise denied both charges.
In July 2006 an immigration judge ("IJ") conducted a final removal hearing to consider these charges. Atunnise's attorney argued that she is "almost illiterate" and speaks only limited English, and thus had been especially confused when confronted with the multiple questions within the bulletpoints on her visa application. Counsel pointed out that when the immigration officer at O'Hare asked Atunnise directly whether she had previously been removed, she answered truthfully. The government did not dispute that its Form DS-156 is ambiguous, but still tersely declared that Atunnise had lied in answering the quoted bulletpoint. It was "inconsequential," the government insisted, that the bulletpoint allowed Atunnise only one "yes" or "no" answer to wholly unrelated questions.
Atunnise argued in the alternative that, if the IJ found her inadmissible, she was eligible for a waiver. Earlier in the removal proceedings Atunnise's counsel had filed an application for a waiver of inadmissibility using Form I-601. Aliens use the I-601 to apply for various waivers of inadmissibility authorized by § 212 of the INA, including those under sections 212(d)(3) and 212(i). As noted, § 212(d)(3) benefits non-immigrants, whereas § 212(i) allows the Attorney General to ...