120 F.4th 527
6th Cir.2024Background
- Safiya Seldon, a native of Nigeria, entered the U.S. in 1992 using her sister's passport and later obtained conditional permanent resident status after marrying a U.S. citizen.
- In 2000, her petition to remove the conditions on her status raised concerns about the legitimacy of her marriage during a joint interview, which she ended prematurely; her conditional residence was subsequently terminated on statutory grounds.
- Seldon was ordered removed from the U.S. after failing to appear at her removal hearing, but the case was reopened a decade later at her request; she then contested removability and sought various immigration reliefs, none of which proved viable.
- At the 2019 removal hearing, evidence of marriage fraud was found; the Immigration Judge (IJ) found Seldon not credible, sustained the fraud charge, and denied her further relief, including asylum and adjustment based on her son's petition.
- Seldon appealed to the Board of Immigration Appeals (BIA) on procedural grounds, arguing errors by the IJ regarding her eligibility for a fraud waiver and asylum advisement; the BIA dismissed her appeal, leading to this petition for review before the Sixth Circuit.
Issues
| Issue | Seldon's Argument | Government's Argument | Held |
|---|---|---|---|
| IJ’s failure to inform of fraud waiver eligibility | IJ failed to advise that she could seek a waiver under § 237(a)(1)(H) for fraud-related removal | Seldon was not apparently eligible for fraud waiver given the independent statutory grounds | IJ was not required to inform her due to lack of eligibility |
| IJ’s failure to inform of right to seek asylum | IJ should have recognized her testimony referenced past abuse/fear justifying asylum advisement | Seldon never indicated current fear of return; counsel declined further relief | IJ fulfilled duty; no advisement required without expressed fear |
| Application of fraud waiver to conditional status | Waiver should extend to all removal grounds, including termination for non-appearance | Termination based on failure to appear is independent of fraud, not waivable | Waiver does not cover independent non-fraud grounds |
| Remand for additional evidence/asylum claim | New evidence post-hearing warranted remand for further consideration | No new evidence unavailable at hearing; asylum claim not sufficiently raised | Remand not warranted |
Key Cases Cited
- Acquaah v. Sessions, 874 F.3d 1010 (7th Cir. 2017) (fraud waiver scope can include charges related to fraud if closely connected)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (establishes standard of review for BIA opinions and legal interpretations)
- Ben Hamida v. Gonzales, 478 F.3d 734 (6th Cir. 2007) (substantial evidence standard applies to BIA factual findings)
- Kisor v. Wilkie, 588 U.S. 558 (2019) (standard for judicial deference to agency regulatory interpretations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations may be persuasive but are not controlling)