Appiah v. Lynch
662 F. App'x 1
| 1st Cir. | 2016Background
- In 2002 Dorowaa Appiah entered the U.S. on an immigrant visa issued as the derivative of a diversity visa obtained by her then‑husband, "Wilberforce."
- DHS discovered that "Wilberforce" was a fictitious alter ego used by David Mensah, who had procured the diversity visa by fraud and then obtained Appiah's derivative visa.
- DHS charged Appiah as removable under 8 U.S.C. § 1227(a)(1)(A) for lacking a valid visa at entry; Appiah denied knowledge of Mensah and claimed she only learned of the fraud after naturalization.
- Appiah’s 2001 visa application, however, listed Mensah as her permanent address contact and visa sponsor, undermining her ignorance claim.
- The immigration judge found Appiah’s visa invalid because it derived from Mensah’s fraudulent alias visa and denied a § 212(k) waiver (partly because she did not seek the waiver with an admission/adjustment application).
- The BIA affirmed the IJ, denied reconsideration, and Appiah timely petitioned for review of the denial of reconsideration (reviewed for abuse of discretion).
Issues
| Issue | Appiah's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of Appiah's visa / admissibility | Appiah argued she was lawfully present and did not know of the fraud | Government argued Appiah's visa was invalid because it derived from Mensah's fraudulent alias visa | Court concluded Appiah's visa was invalid as a matter of law because it derived from the fraudulent Wilberforce visa; BIA's contrary burden statement harmless |
| Eligibility for waiver under 8 U.S.C. § 212(k) | Appiah argued she could get a § 212(k) waiver because she was unaware and could not have ascertained the fraud with reasonable diligence | Government argued Appiah failed to show reasonable diligence and also that waiver was not properly sought with admission/adjustment | Court held BIA did not abuse discretion in denying waiver: record did not compel finding of reasonable diligence by Appiah |
Key Cases Cited
- Asemota v. Gonzales, 420 F.3d 32 (1st Cir. 2005) (denial of motion to reconsider reviewed for abuse of discretion)
- Zhang v. INS, 348 F.3d 289 (1st Cir. 2003) (standards for abuse of discretion in BIA reconsideration denials)
- NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) (court may affirm agency decision on a correct alternative ground)