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Acquaah v. Sessions

United States Court of Appeals, Seventh Circuit

November 6, 2017

James O. Acquaah, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued June 7, 2017

         Petition for Review of an Order of the Board of Immigration Appeals. No. A027-896-308.

          Before Ripple, Rovner and Hamilton, Circuit Judges.

          PER CURIAM

         James Acquaah is a sixty-three-year-old man from Ghana. He originally entered the United States on a visitor's visa and later obtained conditional permanent resident status based on his marriage to a United States citizen. His application to remove the conditions on his residency sparked proceedings that have spanned more than twenty-five years. While those proceedings awaited a decision by the Board of Immigration Appeals (the "Board"), his first marriage ended, he remarried and had a daughter, and he sought and received permanent residency under a different name on the basis of that second marriage. The procedural history of this case is complicated, but the issue before us in the present petition is a narrow one: whether, when issuing a final decision in 2015 on Mr. Acquaah's first petition to remove the conditions on his residency, the Board erred in determining that Mr. Acquaah was statutorily ineligible for a fraud waiver. We conclude that the Board erred in construing the statutory waiver and therefore remand this case to the Board for proceedings consistent with this opinion.

         I

         BACKGROUND

         A.

         In 1981, Mr. Acquaah married Apollonia Sowah in Ghana. While still married to Sowah, Mr. Acquaah was admitted to this country in 1984 on a visitor's visa. In mid-1986, he divorced Sowah, and several months later, he married a United States citizen, Sharon Collins. Collins filed a petition on his behalf, and on the basis of their marriage, he obtained conditional permanent resident status.

         In 1990, he and Collins jointly filed a petition to remove the conditions on his permanent resident status (the "Collins petition") and were jointly interviewed on the petition in April 1990. The record is not entirely clear on the point, but he and Collins separated around the same time. A year after the interview, the agency (the former Immigration and Naturalization Service, or "INS") issued its notice of intent to deny the petition because it concluded that he had failed to show that his marriage was bona fide at its inception. In June 1991, on the basis of that decision, the agency initiated deportation proceedings. It charged Mr. Acquaah as deportable under 8 U.S.C. § 1227(a)(1)(D)(i), as an alien whose conditional status had been terminated "because the marriage which qualified you for status was determined to have been entered into for the sole purpose of procuring your entry as an immigrant."[1]

         Approximately one month later, Mr. Acquaah, now separated from Collins, registered a new customary marriage to his first wife, Sowah, in Ghana, using the name "Kofi Obese."[2]

         In deportation proceedings, an immigration judge ("IJ") reviewed the agency's charge relating to the denial of the Collins petition. The IJ noted that the statute governing termination of conditional resident status, 8 U.S.C. § 1186a(c)(3)(A), required the INS to issue a decision within 90 days of the interview. When it failed to do so, the conditions on Mr. Acquaah's residence were "removed by operation of law."[3] He was, therefore, a permanent resident, and the IJ terminated proceedings.

         The agency appealed from the IJ's 1992 decision to terminate proceedings, and the case languished (inexplicably) with the Board of Immigration Appeals for nearly a decade. During that decade, Sowah immigrated to the United States, apparently the beneficiary of a successful diversity lottery application. Mr. Acquaah and Sowah had a child together, Georgene. With no decision from the Board on the Collins petition, Mr. Acquaah applied for and obtained status through Sowah in 1996, using the name under which he had registered their marriage in Ghana, Kofi Obese. He obtained, therefore, a second permanent residence card under this name.

         In 2000, the Board finally issued its decision on the Collins petition. It concluded that the agency's failure to adjudicate the petition in a timely fashion was not a basis for the immigration court to terminate deportation proceedings, and the Board therefore remanded the case for further proceedings.

         In 2003, Mr. Acquaah and Collins divorced. Back before the IJ, Mr. Acquaah sought a continuance to pursue a new petition to lift the conditional nature of his lawful permanent residence, this time, with a waiver of the joint filing requirement under 8 U.S.C. § 1186a(c)(4)(B), the "good faith waiver." This petition, which would be adjudicated by the agency in the first instance, required him to establish that, although the marriage to Collins had ended in divorce, he had entered it in good faith and not for the purpose of obtaining an immigration benefit. The IJ agreed to close the case administratively while Mr. Acquaah pursued the good faith waiver. For reasons undisclosed by the record, several more years passed, and in 2010 the agency eventually denied this petition.

         Because the good faith waiver was denied administratively by the agency, Mr. Acquaah's case was again referred to the IJ for a new hearing. Days before the scheduled hearing on the merits, the agency took Mr. Acquaah's fingerprints in a routine step to complete a background check. Before the results of the fingerprint analysis became known, Mr. Acquaah appeared for the hearing, and his testimony was selective. He did not mention, for example, that, after separating from Collins, he had remarried Sowah. Nor did he mention that he had a child with Sowah, born in the United States. The IJ accepted his testimony as true and granted his request for a good faith waiver of the joint petition requirement. The IJ noted that the case concerned the intent of the parties to a marriage some twenty years prior and which had lasted only three years, that Mr. Acquaah nevertheless had provided, in 1992 and testimony in 2011, evidence to support the bona fides of his marriage, and that, although the Government was suspicious, it had submitted little contrary evidence. This ruling removed the conditional nature of his lawful permanent resident status as James Acquaah.

         The day after the IJ granted Mr. Acquaah's permanent residence, his fingerprint results came back to the agency-with two hits: James Acquaah, who had received conditional residence in 1988 and permanent residence in 2011 on the basis of his marriage to Collins, and Kofi Obese, who had received permanent residence in 1996 on the basis of his marriage to Sowah. The Department of Homeland Security ("DHS") therefore launched an investigation, and in 2013, moved to reopen the original deportation proceedings against Mr. Acquaah. DHS asserted that the new evidence established both identity fraud and marriage fraud, i.e., that his marriage to Collins was fraudulent and not in good faith.

         The IJ granted the agency's motion to reopen, agreeing that evidence had been uncovered to suggest that there was fraud in the original proceeding with respect to Mr. Acquaah's identity and his marriage to Collins. Specifically, the IJ ruled that the Government had submitted evidence in connection with its motion to reopen that "suggested] that there was fraud in the respondent's original proceeding, not only with respect to his identity but also with respect to whether his marriage to Sharon Collins was in good faith."[4]

         B.

         In the reopened proceedings, the agency lodged an additional charge against Mr. Acquaah: that he was deportable as an alien "who by fraud or willful misrepresentation of a material fact sought to procure (or has sought to procure or has procured) a visa or other documentation or other benefit under the Act." See 8 U.S.C. § 1182(a)(6)(C)(i).[5] That charge supplemented the charge in the Order to Show Cause from 1992, which alleged that his conditional status was terminated because his marriage to Collins was fraudulent, i.e., entered solely for the purpose of obtaining permanent residency.

         In a new hearing, Mr. Acquaah testified before the IJ that, even though he and Collins were not officially divorced until 2003, he had separated from her in 1991. Following that separation, he continued, he reconnected with his ex-wife from Ghana, Sowah, who recently had moved to Chicago. They lived together, and in 1995 Sowah gave birth to their daughter, Georgene. Mr. Acquaah explained that he filed the second application for permanent resident status shortly afterward, in 1996, when Georgene was an infant, because Sowah was dying of sickle-cell disease, and he feared-given that his prior application had been pending for nearly a decade-that his immigration status would not be resolved before she died. He was particularly intent on obtaining permanent resident status before having to become the sole caregiver for Georgene, who had inherited sickle-cell disease from her mother and who also suffers from multiple sclerosis. Sowah eventually died in 2008. Since then, Mr. Acquaah has been caring for Georgene by himself. He has supported her through his work as an accountant and as a pastor at his local church. Georgene corroborated that account in an affidavit, in which she explained that, although she now is a college student, she still relies on her father for help with her medical and financial needs, and that she still returns home almost every weekend. Her medical condition and Sowah's death were also confirmed by additional record documents.

         The IJ considered both charges brought by the Government. He first addressed the additional charge added by the Government in the reopened proceedings: identity fraud, based on Mr. Acquaah's conduct in pursuing status on the basis of his marriage to Sowah. The IJ concluded that this charge was not sustained. While noting that "it is clear that [Mr. Acquaah's] adjustment of status to that of a permanent resident in 1996" on the basis of the marriage to Sowah "was fraudulent/'[6] the IJ nevertheless concluded that the elements of the statutory charge were not satisfied by the Government's proof.[7]

         The IJ then turned to the original charge in this reopened proceeding, relating to termination of conditional resident status on the ground that the Collins petition constituted marriage fraud. The IJ first concluded that "the Department of Homeland Security ... properly terminated [Mr. Acquaah's] permanent resident status on a conditional basis and removability has been established by evidence which is clear and convincing."[8]

         The IJ then considered the applications for relief from removal. The first was a readjudication of the good faith waiver on the Collins petition. Although the IJ had found in favor of Mr. Acquaah on this point in 2011, the IJ concluded that the additional facts brought to light by the Government's subsequent investigation and Mr. Acquaah's 2015 testimony required a reversal of his prior finding of good faith. The IJ relied on Mr. Acquaah's failure to disclose in his 2011 testimony his remarriage to Sowah and the existence of his daughter to conclude that Mr. Acquaah's marriage to Collins was not bona fide. The IJ concluded that Mr. Acquaah's testimony was not credible and that his documents, unsupported by additional witness testimony, were not "reliable at this point."[9]

         He then turned to the alternate application for relief, a fraud waiver under 8 U.S.C. § 1227(a)(1)(H). The IJ agreed with the Government that Mr. Acquaah was statutorily ineligible for the waiver. With no other applications for relief before him and none apparently available, the IJ ordered Mr. Acquaah removed. The IJ added that he was "not unsympathetic" to Mr. Acquaah's situation, but that the immigration court was "not a court of ...


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