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Shojaeddini v. Sessions

United States Court of Appeals, Seventh Circuit

January 11, 2018

Sharareh Shojaeddini, et al., Petitioners,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued November 6, 2017

         Petition for Review of an Order of the Board of Immigration Appeals. Nos. A078-208-227, A078-208-228

          Before BAUER, KANNE, and ROVNER, Circuit Judges.

          BAUER, CIRCUIT JUDGE.

         Sharareh Shojaeddini and her young daughter, Maryam ("Petitioners"), were placed in removal proceedings in 2008 after the Department of Homeland Security ("DHS") discovered that Sharareh had made material misrepresentations on her adjustment of status application, as well as her previously filed asylum application. Petitioners applied for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H), which the Immigration Judge denied, finding that the fraud waiver did not apply to frauds committed at the adjustment of status.

         Before the Board of Immigration Appeals (BIA) decided Petitioners' appeal, DHS filed a motion to remand to the IJ so he could reconsider another aspect of the fraud waiver issue that he had declined to address: whether Sharareh had filed a frivolous asylum application, which would make her permanently ineligible for any immigration benefit. 8 U.S.C. § 1158(d)(6). On remand, the IJ found that Sharareh had filed a frivolous asylum application, making her permanently ineligible for the fraud waiver. Petitioners appeal, arguing that the BIA procedurally erred in granting DHS' motion to remand. We conclude that the BIA did not err, and deny the petition for review.

         I. BACKGROUND

         Sharareh is a native of Iran. Her family fled Iran in 1986 to escape persecution, and eventually settled in Norway. While there, Sharareh became a naturalized citizen of Norway in 1994, and married a Norwegian citizen in 1996. Sharareh and her family briefly returned to Iran in 1997, but promptly went back to Norway after facing further persecution. She gave birth to Mary am in Norway in 1999.

         In 1999, using their Norwegian passports, Sharareh and Maryam entered the United States for the first time. Sharareh filed an 1-589 application for asylum in 2000, listing Maryam as a derivative. Her application contained several material omissions and misrepresentations. Sharareh noted only that she was an Iranian national and failed to disclose that she was a Norwegian citizen and had been residing there since 1986. Additionally, she falsely stated that she was married to an Iranian citizen who had been detained and tortured there. Sharareh's application also described persecution she and her family had faced from Iranian authorities, including unlawful arrests and sexual abuse.

         An IJ in New Jersey granted Sharareh's asylum application on February 8, 2001, and granted Maryam asylum status as a derivative. After receiving asylum status, Petitioners traveled to and from Norway on several occasions between 2001 and 2002 using their Norwegian passports.

         On March 4, 2002, Sharareh, on behalf of herself and Maryam, applied for an adjustment of status. In the application, Sharareh again omitted that she was a Norwegian citizen. She also omitted the fact that she had been traveling to and from Norway since 1999. While her application was pending, Petitioners continued to travel to and from Norway. On April 26, 2006, the application was granted, and their statuses were adjusted to lawful permanent residents.

         In 2008, DHS began investigating whether Sharareh had committed asylum fraud. On December 18, 2008, Petitioners were served with Notices to Appear in immigration court and charged with removability as inadmissible aliens under 8U.S.C. § 1227(a)(1)(A): Sharareh for procuring an immigration benefit by fraud or willful misrepresentation of material fact, under 8 U.S.C. § 1182(a)(6)(C)(i); and, Maryam for not being in possession of a valid entry document at the time of her entry or adjustment of status, under 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a hearing before the IJ, Sharareh admitted the allegations, and the IJ found them removable.

         Petitioners subsequently sought relief under the fraud waiver, 8 U.S.C. § 1227(a)(1)(H). An alien who is removable on the grounds that she was "inadmissible at the time of admission" may obtain a fraud waiver if (1) the alien is in possession of an immigrant visa or equivalent document, and is otherwise admissible; or, (2) the alien is a spouse, parent, son or daughter of a U.S. citizen or of an alien lawfully admitted for permanent residency. 8 U.S.C. § 1227(a)(1)(H)(i)(I-II). Sharareh sought the fraud waiver under the first provision, while Maryam sought the fraud waiver under the second.

         The IJ denied Petitioners relief under the fraud waiver on February 2, 2012. The IJ gave two reasons for its denial: first, Petitioners were statutorily ineligible from relief because the fraud waiver is not available for frauds committed at the time of an adjustment of status; and, second, even if the fraud waiver could apply to the adjustment of status, Petitioners were not "otherwise admissible" because of the misrepresentations on Sharareh's asylum application, as well as Petitioners' failure to disclose the multiple entries into the U.S. on their Norwegian passports. Importantly, the IJ declined to consider DHS' argument that Sharareh was statutorily barred from all immigration relief, including the fraud waiver, because she filed a frivolous asylum application. See 8 U.S.C. ยง 1158(d)(6) ("If the Attorney General ...


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