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No. 95-938. Argued October 15, 1996-Decided November 13,1996

Respondent and his wife, former Taiwan residents, executed elaborate fraudulent schemes to gain entry to the United States and, later, to obtain citizenship for respondent. While respondent's naturalization application was pending, the Immigration and Naturalization Service (INS) learned of his unlawful entry and issued an order to show cause why he should not be deported as excludable at the time of entry. He conceded that he was deportable and filed a request for a waiver of deportation under 8 U. S. C. § 1251(a)(I)(H). In affirming the Immigration Judge's denial of this request, the Board of Immigration Appeals concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. In vacating and remanding for further proceedings, the Ninth Circuit held that the Board abused its discretion by considering as adverse factors, first, respondent's participation in his wife's fraudulent entry and, second, his fraudulent naturalization application. The court reasoned that his acts in the former regard were "inextricably intertwined" with his own efforts to secure entry and must be considered part of the initial fraud, while his application must be considered an "extension" of that initial fraud.

Held: In deciding whether to grant a waiver under § 1251(a)(I)(H), the Attorney General (or her delegate, the INS) may take into account acts of fraud committed by the alien in connection with his entry into the United States. The relevant statutory language establishes certain prerequisites to eligibility for a waiver, but imposes no limitations on the factors that the INS may consider in determining who, among the class of eligible aliens, should be granted relief. Cf., e. g., Jay v. Boyd, 351 U. S. 345, 354. Although it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination, that policy is the INS's own invention and is not required by the statutory text. Moreover, the INS has not abused its discretion by arbitrarily disregarding its policy here; it has merely taken a narrow view of what constitutes "entry fraud." It is assuredly rational, and therefore lawful, to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. Pp. 29-32.

58 F.3d 452, reversed.


SCALIA, J., delivered the opinion for a unanimous Court.

Beth S. Brinkmann argued the cause for petitioner. With her on the briefs were Solicitor General Days, Acting Solicitor General Dellinger, Assistant Attorney General Hunger, and Deputy Solicitor General Kneedler.

Howard Hom argued the cause for respondent. With him on the brief were Robert L. Reeves, Franklin W Nelson, and Bill Ong Hing.*

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), 95 Stat. 1616, as amended, 8 U. S. C. § 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States.

Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People's Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme:

After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife "Mary" was a United States citizen by birth and that respondent had been lawfully ad-

* Daniel J. Popeo and David A. Price filed a brief for the Washington Legal Foundation as amicus curiae urging reversal.

Sandra E. Kupelian filed a brief for the American Immigration Lawyers Association et al. as amici curiae urging affirmance.

Full Text of Opinion

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