 NEWS FROM THE COURTS
Okpa v. INS, Fourth Circuit
In this case, the court ruled that a change in standards for a waiver was not retroactive.
Okpa Agwu Okpa, a native of Nigeria, entered the US in 1990 on a tourist visa and did not leave when his authorized period of entry was over. In 1992, he was approached by a person attached to the Liberian embassy in Washington , DC , about applying for Temporary Protected Status. At the time TPS, was available to nationals of Liberia because of an ongoing civil war. Following advice from the person from the Liberian embassy, Okpa filed an application for TPSA in which he claimed to be a citizen of Liberia . During the TPS interview, Okpa initially again claimed to be from Liberia , but after being pressed by the examiner, admitted that he was from Nigeria . The TPS application was denied, and Okpa was placed in deportation proceedings. About two weeks later he married a US citizen and applied for adjustment of status.
Because of the fraudulent TPS application, Okpa had to obtain a waiver of inadmissibility. There is a special waiver available for inadmissibility based on failing fraudulent documents with the INS. In 1993, when Okpa sought the waiver, it was available to spouses of US citizens is the denial of the waiver would result in hardship to the citizen spouse. However, the immigration judge did not use this waiver, but instead applied on reserved for inadmissibility because of criminal activity. Under this waiver, extreme hardship to the citizen spouse must be proved. Finding that Okpa had not established extreme hardship, the immigration judge denied the waiver application. Okpa appealed to the Board of Immigration Appeals.
While the appeal was pending, Congress changed the fraud waiver statute to require a showing of extreme hardship to the citizen spouse. The Board ruled that this change applied retroactively to Okpa, and so affirmed the immigration judge’s ruling. Okpa then appealed to the Fourth Circuit, arguing that the changed provision should not be retroactively applied to him.
It is established that the Board is to apply the law as it exists at the time it hears a case, even if the law was different when the case was heard by the Immigration Judge. Therefore, the issue was whether Congress intended the change in the hardship standard to be applied retroactively. The court found that application of the changed provision did not have a retroactive effect, and so upheld the ruling of the Board.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=972358P.
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