INS v. Yueh-Shaio Yang, 519 U.S. 26, 5 (1996)

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30

INS v. YUEH-SHAIO YANG

Opinion of the Court

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)(1)(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-which, in its prologue, authorized waiver of deportation "on the ground that [the aliens] were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States, by fraud or misrepresentation." 8 U. S. C. § 1251(f) (1988 ed.). In the prologue of the current provision, that explicit (but lengthy) reference to fraud or misrepresentation has been replaced by citation of § 1182(a)(6)(C)(i), which uses almost the same language to define a class of excludable aliens. We think it if not obvious, then at least inevitable, that the phrase "that fraud or misrepresentation" refers to the fraud or misrepresentation for which waiver is sought, alluded to, through citation of § 1182(a)(6)(C)(i), in the prologue.

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