Appiah v. Lynch , 662 F. App'x 1 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1926
DOROWAA APPIAH,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Andrew B. Insenga, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Douglas E. Ginsburg, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
October 18, 2016
KAYATTA, Circuit Judge. In 2002, Dorowaa Appiah
("Appiah") entered the U.S. with a visa procured as the derivative
of a diversity visa obtained by her then-husband, Wilberforce
Appiah ("Wilberforce"). The Department of Homeland Security
("DHS") eventually figured out that Wilberforce was an alter ego
created by David Mensah ("Mensah") after he naturalized in 2001.
In brief, Mensah created the fake identity, secured a fraudulent
visa in Wilberforce's name, and then used that visa to obtain a
visa for Appiah.
DHS subsequently charged Appiah with removability under
8 U.S.C. § 1227(a)(1)(A) for not being in possession of a valid
visa at the time of her entry. In opposition, Appiah filed an
affidavit claiming that she did not know Mensah and that it was
not until after her naturalization interview that she learned of
the identity fraud. Her visa application from 2001, however,
listed Mensah not only as the person she would be living with at
her permanent address but also as her visa sponsor. Appiah further
sought relief under the waiver provision of 8 U.S.C. § 212(k),
which states:
Any alien, inadmissible from the United States
under paragraph (5)(A) or (7)(A)(i) of
subsection (a) of this section, who is in
possession of an immigrant visa may, if
otherwise admissible, be admitted in the
discretion of the Attorney General if the
Attorney General is satisfied that
inadmissibility was not known to, and could
not have been ascertained by the exercise of
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reasonable diligence by, the immigrant before
the time of departure of the vessel or
aircraft from the last port outside the United
States and outside foreign contiguous
territory or, in the case of an immigrant
coming from foreign contiguous territory,
before the time of the immigrant's application
for admission.
The immigration judge ruled against Appiah on both
grounds. Specifically, the judge found that because Mensah's
Wilberforce visa was invalid (as a product of fraud), so too was
Appiah's; that Appiah was therefore inadmissible because she had
no valid visa; and that she was not eligible for waiver of
inadmissibility under § 212(k) because she did not seek the waiver
in conjunction with an application for admission or adjustment of
status.
The BIA dismissed Appiah's subsequent appeal, ruling
that: (1) she "did not satisfy her burden of proving by clear and
convincing evidence that she is lawfully in the United States,"
and (2) she was not eligible for a waiver of admissibility under
§ 212(k) for the reason stated by the immigration judge, and also
because she had not "sufficiently demonstrated her eligibility for
such a waiver."
Appiah did not appeal the BIA's decision. Rather, she
sought reconsideration, which was denied, and then timely
petitioned for review of only the denial of reconsideration. We
therefore limit our review to examining the BIA's denial for an
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abuse of discretion. See Asemota v. Gonzales, 420 F.3d 32, 34
(1st Cir. 2005) ("Our review of the BIA's denial of petitioner's
motion to reconsider is for abuse of discretion. We will find an
abuse of discretion only where . . . 'the denial was made without
a "rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis" (such as race).'"
(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (internal
citations omitted))).
As far as the finding that Appiah is inadmissible because
she is not lawfully in the United States, the parties agree that
the BIA erred as a matter of law in stating that Appiah bore the
burden of proving lawful presence. Nevertheless, given the
evidence showing that the visa issued to Mensah's fictitious
Wilberforce alias was invalid, it follows that Appiah's visa was
invalid for the purposes of admissibility. See Matter of
Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2013). Therefore, the
BIA's error provides no reason to remand. See NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 766 n.6 (1969). Indeed, even on appeal,
Appiah offers no argument that Mensah's alias visa was valid, or
that its invalidity did not per force invalidate her visa ab
initio.
As for the § 212(k) waiver, it was not an abuse of
discretion for the BIA to find that Appiah failed to make the
required showing that she was reasonably diligent in ascertaining
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her admissibility prior to entry. Indeed, her own statements,
described above, suggested that she very likely knew of the
chicanery and certainly made no efforts to confirm the relationship
between Wilberforce--the purported name of her then-husband--and
Mensah--the name she listed on her visa application. All in all,
the record does not compel a finding of reasonable diligence by
Appiah in her professed failure to learn that Wilberforce and
Mensah were one and the same.1
We therefore deny Appiah's petition for review.
1 We therefore need not consider or resolve the parties'
dispute concerning whether § 212(k) would be applicable had Appiah
demonstrated such diligence.
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