Acquaah v. Sessions
874 F.3d 1010
7th Cir.2017Background
- James Acquaah, a Ghanaian national, obtained conditional LPR status in 1988 through marriage to U.S. citizen Sharon Collins; INS later issued a notice of intent to deny the petition to remove conditions and initiated deportation proceedings in 1991 for marriage fraud.
- While the Board delayed decision for years, Acquaah remarried his first wife (Apollonia Sowah) in Ghana using the name Kofi Obese and obtained permanent residence in 1996 based on that marriage; he later had a U.S.-born daughter, Georgene.
- The Board finally remanded the original Collins-related proceedings in 2000; Acquaah sought and in 2011 received a good-faith waiver (removing conditions) after an IJ found his Collins marriage bona fide; fingerprints later revealed his two identities.
- DHS moved to reopen in 2013, alleging identity and marriage fraud; the IJ reopened, found Acquaah removable based on termination of conditional status related to Collins, reversed the earlier good-faith waiver, and ruled Acquaah ineligible for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H).
- The Board affirmed the IJ, holding Acquaah ineligible for the fraud waiver because he was found removable for termination of conditional status (not the fraud/misrepresentation ground itself).
- The Seventh Circuit reviewed whether the Board erred in construing the scope of § 1227(a)(1)(H) and remanded for the Board to determine whether the sustained ground of removal was "related to" waivable fraud and, if so, whether relief should be granted in the agency’s discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1227(a)(1)(H) fraud waiver can cover removal based on termination of conditional resident status that resulted from marriage fraud | Acquaah: waiver covers "provisions" related to inadmissibility by fraud, so termination of conditional status that flows from fraud is waivable | Government: waiver applies only to inadmissibility at entry (or the specific fraud charge); termination-of-status charge is not a waivable ground | Court: Board erred in treating the specific charge as dispositive; remand for Board to decide whether the sustained charge is "related to" waivable fraud under § 1227(a)(1)(H) |
| Whether IJ improperly readjudicated bona fides of Collins marriage on reopening | Acquaah: readjudication was procedurally unfair and a miscarriage of justice | Government: reopening and reconsideration are permitted, especially where Service alleges fraud in original proceeding | Held: Reopening was proper; regulations allow reopening when new evidence of fraud is presented |
Key Cases Cited
- Ni v. Holder, 635 F.3d 1014 (7th Cir.) (appellate review of Board decisions where Board issues its own opinion)
- Moab v. Gonzales, 500 F.3d 656 (7th Cir.) (same principle on scope of review of Board orders)
- Arobelidze v. Holder, 653 F.3d 513 (7th Cir.) (exception to exhaustion when Board raises issues sua sponte)
- Vasquez v. Holder, 602 F.3d 1003 (9th Cir.) (interpreting § 1227(a)(1)(H) to permit waiver for termination-of-conditional-status when it is grounded in the same fraud that made the alien inadmissible)
- Mellouli v. Lynch, 135 S. Ct. 1980 (U.S.) (statutory phrase "relating to" is broad absent contrary context)
- INS v. Errico, 385 U.S. 214 (U.S.) (fraud-waiver provisions have a humanitarian purpose to avoid breaking up families composed in part of U.S. citizens)