Immigration & Naturalization Service v. Yueh-Shaio Yang

mitted for permanent residence. In 1985, while respondent’s naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship).

The Immigration and Naturalization Service (INS) ultimately learned of respondent’s unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was de-portable under 8 U. S. C. § 1251 (a)(1)(A), because he was ex-cludable from the United States at the time of entry under the former 8 U. S. C. §§ 1182 (a)(14), (19), and (20) (1988 ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under § 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge’s denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent’s fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent’s “acts of immigration fraud before and after his 1978 entry into the United States,” App. to Pet. for Cert. 10a, including his first sham divorce to facilitate his wife’s unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name.

visa The Court of Appeals for the Ninth Circuit granted respondent’s petition for review, vacated the Board’s decision, and remanded the case for further proceedings. Yang v. INS, 58 F. 3d 452 (1995). The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent’s participation in his wife’s fraudulent entry, because those acts were “inextricably intertwined with Mr. Yang’s own efforts to secure entry into the country and must be considered part of the initial fraud.” Id., at 453 . The Ninth Circuit also concluded that the Board improperly

The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General (or her delegate, the INS, see 8 CFR §2.1 (1996)) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General’s suspension of deportation under a related and similarly phrased provision of the INA as “ ‘an act of grace’ ” which is accorded pursuant to her “unfettered discretion,” Jay v. Boyd, 351 U. S. 345 , 354 (1956) (quoting Escoe v. Zerbst, 295 U. S. 490 , 492 (1935)), and have quoted approvingly Judge Learned Hand’s likening of that provision to “ ‘a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict,’” 351 U. S., at 354, n. 16 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489 , 491 (CA2 1950)).

Respondent contends, however, that the portion of § 1251(a)(l)(H)(ii) requiring the alien to be “otherwise admissible” — that is, not excludable on some ground other than the entry fraud — precludes the Attorney General from considering the alien’s fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-of-deportation statute at issue in INS v. Errico, 385 U. S. 214 (1966), under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under § 1251(a)(1)(H), includ

ing the requirement that the alien have been “otherwise admissible,” establishes only the alien’s eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent’s argument that all entry fraud must be excused, which is untenable.

Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See Delmundo v. INS, 43 F. 3d 436 , 440 (CA9 1994). This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS’s frequent concessions in litigation that the underlying fraud for which the alien is deportable “should not be considered as an adverse factor in the balancing equation,” Liwanag v. INS, 872 F. 2d 685 , 687 (CA5 1989); see also Braun v. INS, 992 F. 2d 1016 , 1020 (CA9 1993); Start v. INS, 803 F. 2d 539 , 542 (CA9 1986), withdrawn, 862 F. 2d 787 (1988). (Such concessions were facilitated, no doubt, by the Ninth Circuit’s frequent intimations that the statute forbade consideration of the initial fraud. See Hernandez-Robledo v. INS, 777 F. 2d 536 , 541 (1985); see also Braun, supra, at 1020 ; Delmundo, supra, at 441 .) Before us, however, the United States disclaims such a position — and even if that were the agency’s view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 , 229-230 (1994). But that does not render the

INS’s practice irrelevant. Though the agency’s discretion is unfettered at the outset, if it announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary, capricious, [or] an abuse of discretion” within the meaning of the Administrative Procedure Act, 5 U. S. C. § 706 (2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes “entry fraud” under that policy, excluding events removed in time and circumstance from respondent’s entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The “entry fraud” exception being, under the current statute, a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as “inextricably intertwined” with, or an “extension” of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an “inextricably intertwined” or “essential extension” augmentation of her “entry fraud” exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. for the Ninth

The judgment of the Court of Appeals for the Ninth Circuit is reversed.

It is so ordered.