Sharareh Shojaeddini v. Jefferson B. Sessions III

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1648
SHARAREH SHOJAEDDINI, et al.,
Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A078-208-227
No. A078-208-228
ARGUED NOVEMBER 6, 2017 — DECIDED JANUARY 11, 2018
Before BAUER, KANNE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Sharareh 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
2 No. 17-1648
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.
Before 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 perma-
nently 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.
I. BACKGROUND
Sharareh 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 Maryam in Norway in 1999.
In 1999, using their Norwegian passports, Sharareh and
Maryam entered the United States for the first time. Sharareh
filed an I-589 application for asylum in 2000, listing Maryam as
No. 17-1648 3
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.
An IJ 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.
On March 4, 2002, Sharareh, on behalf of herself and
Maryam, applied for an adjustment of status. In the applica-
tion, 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.
In 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
8 U.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
4 No. 17-1648
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.
Petitioners 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 admis-
sion” 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.
The IJ 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 misrepresenta-
tions 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 determines that an alien has know-
ingly made a frivolous application for asylum and the alien has
received the notice under paragraph (4)(A), the alien shall be
No. 17-1648 5
permanently ineligible for any benefits under this chapter
… .”).
Petitioners appealed to the BIA. DHS filed an opposition
brief contending that the IJ had correctly found them ineligible
for the waiver, but also asked the BIA to find that Sharareh
filed a frivolous asylum application making her permanently
ineligible for any immigration benefit.
Before the BIA issued a decision, DHS filed a motion to
remand to the IJ. In the motion, DHS withdrew its arguments
in support of the IJ’s decision. Specifically, DHS conceded, in
light of new legal authority, that an IJ may issue a fraud waiver
for frauds committed at the time of an adjustment of status.
DHS requested that on remand the IJ enter a new decision
addressing the frivolous asylum application argument.
Petitioners opposed the motion, arguing that DHS waived the
right to have the issue addressed by not cross-appealing to the
BIA. Moreover, in light of DHS’ concession on the applicability
of fraud waivers to an adjustment of status, Petitioners
requested that the BIA remand with instructions for the IJ to
consider whether they merit the waiver as an exercise of
discretion.
The BIA remanded the case to the IJ on October 28, 2014,
“to issue a new decision that makes the necessary findings of
fact and legal conclusions with respect to the DHS’ argument
that [Sharareh] knowingly filed a frivolous asylum application
that renders her permanently ineligible for [any immigration
benefit].” The BIA found that DHS had properly preserved the
issue by raising it in their opposition brief before requesting the
remand. The BIA instructed the IJ that “the new decision on
6 No. 17-1648
remand should address any additional issues, including any
remaining issues regarding [Petitioners’] eligibility for relief
from removal.” One member of the BIA dissented.
On remand, Sharareh argued that while parts of her asylum
application contained omissions and misrepresentations,
she did not deliberately fabricate the application. DHS
argued that her failure to disclose the fact that she was a
Norwegian citizen, along with other misrepresentations, were
done deliberately, and that they materially affected the grant
of asylum.
On December 1, 2015, the IJ again denied relief under the
fraud waiver, finding that Sharareh had made a knowing
frivolous asylum application, and thus, was ineligible for any
immigration relief. Additionally, although the frivolous
asylum application bar did not apply to Maryam, she still did
not meet either of the two criteria to qualify for the fraud
waiver. See 8 U.S.C. § 1227(a)(1)(H)(i)(I–II).
Petitioners appealed to the BIA again, and on March 7,
2017, the BIA affirmed. This appeal followed.
II. DISCUSSION
At the onset, we must note that Petitioners do not challenge
the IJ’s determination that they are not eligible for the fraud
waiver, and are thus removable, nor the BIA’s affirmance of
that decision. Specifically, Sharareh is not challenging the
finding that she deliberately filed a frivolous asylum applica-
tion, nor is Maryam challenging the conclusion that she failed
to satisfy the eligibility requirements for the fraud waiver.
Rather, Petitioners contest the procedural steps that led the
No. 17-1648 7
BIA to remand the case to the IJ for a determination on the
frivolous asylum application.
We review the BIA’s decision to grant DHS’ motion to
remand for an abuse of discretion. Boykov v. Ashcroft, 383 F.3d
526, 529–30 (7th Cir. 2004). The BIA’s decision to grant the
motion to remand will be upheld unless it was granted without
any rational explanation, or it “inexplicably departed from
established policies.” Id. at 530.
Initially, Petitioners argue that the BIA ignored its own
practice of declining to reopen cases unless new evidence has
been presented. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen
proceedings shall not be granted unless it appears to the Board
that evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing … .”). However, DHS did not file a motion
to reopen the case; it filed a motion to remand while Petition-
ers’ appeal was pending before the BIA. See 8 C.F.R.
§ 1003.2(c)(4) (“A motion to reopen a decision rendered by an
Immigration Judge … that is filed while an appeal is pending
before the Board, may be deemed a motion to remand for
further proceedings before the Immigration Judge … .”). A
motion to reopen implies that the case has been closed, or that
the BIA has reached a final decision. See 8 C.F.R. § 1003.2(a)
(noting that a motion to reopen or reconsider can be made in
“any case in which a decision has been made by the Board”).
Because there is a meaningful distinction between the two
motions, the BIA was correct in not treating DHS’ motion as a
motion to reopen or holding it to the new evidence standard.
8 No. 17-1648
Petitioners also argue that the BIA erred in granting the
motion to remand because DHS had not preserved the frivo-
lous asylum application issue by cross-appealing the IJ’s ruling.
This argument also fails. As the BIA noted, DHS was the
prevailing party before the IJ. A prevailing party need not file
a cross-appeal “so long as that party seeks to preserve, and not
to change, the judgment.” Nw. Airlines, Inc. v. Cty. of Kent,
Mich., 510 U.S. 355, 365 (1994). DHS’ opposition brief sought
the affirmance of the IJ’s decision, while also arguing that the
record supported a frivolous asylum application finding. This
was the proper way to preserve the issue on appeal. The BIA
correctly concluded that by raising the alternative ground in
their opposition brief, DHS did not waive the frivolous asylum
argument.
Finally, Petitioners argue that by granting the motion to
remand, the BIA compelled the IJ to make a frivolous asylum
application finding. However, a plain reading of the BIA’s
order granting the motion to remand does not support Petition-
ers’ interpretation; the BIA sent the case back to the IJ “to issue
a new decision that makes the necessary findings of fact and
legal conclusions with respect to DHS’ argument that
[Sharareh] filed a frivolous asylum application … .” While the
remand instructed the IJ to issue a new opinion, it did not
compel the IJ to conclude that Sharareh filed a frivolous
asylum application. The remand gave the IJ discretion as to the
factual findings and legal conclusions, and the scope of the
remand was broad. The BIA instructed the IJ to consider any
additional issues, including issues regarding Petitioners’
eligibility for relief from removal.
No. 17-1648 9
On remand, the parties submitted briefs and the IJ con-
ducted a new hearing. In Petitioners’ brief before the IJ on
remand, Petitioners cited to a Second Circuit case which held
that the relevant statute and regulations do not compel an IJ to
reach a finding on a frivolous asylum application. See Zheng v.
Holder, 672 F.3d 178, 185–87 (2d Cir. 2012). This was an addi-
tional issue regarding relief from removal that the IJ could
consider in the scope of the remand. In its discretion, the IJ
found that Sharareh had deliberately filed a frivolous asylum
application, thus barring her from any immigration relief.
Nothing in the IJ’s decision indicates that he was compelled by
the BIA to reach that finding.
III. CONCLUSION
Since the BIA did not procedurally err in granting the
motion to remand, and the Petitioners do not make substantive
challenges to the decisions on their removal, the petition is
DENIED and the BIA’s decision is AFFIRMED.