November 6, 2017
for Review of an Order of the Board of Immigration Appeals.
Nos. A078-208-227, A078-208-228
BAUER, KANNE, and ROVNER, Circuit Judges.
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.
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.
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.
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.
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.
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.
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.
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.
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.
§ 1158(d)(6) ("If the Attorney General ...