BIA Wrongly Denied Appeal In Marriage Fraud Case: 7th Circ.
The Seventh Circuit has kept a decades-old immigration tussle going with a ruling that a Board of Immigration Appeals panel misinterpreted the law when it denied an immigrant another shot at avoiding deportation for an allegedly fraudulent marriage.
The panel found that after 27 years of immigration proceedings, a divorce, a remarriage and a residency application filed under a different name, the BIA was too focused on the absence of specific fraud charges when it said Ghanese citizen James Acquaah was barred from asking for a fraud waiver in his deportation proceedings.
“It should have considered whether the charge sustained against Mr. Acquaah – termination of conditional resident status on the basis of his marriage to Sharon Collins – was related to fraud,” the panel said in its opinion.
The case concerns claims that Ghanese citizen Acquaah was involved in a fraudulent citizenship marriage to Collins at the time he first applied for permanent U.S. residency in 1990 and concealed he had divorced and remarried, and applied for residency under another name by the time the immigration court decided the issue more than 20 years later.
In 1986 Acquaah, then in the U.S. on a visitor’s visa, divorced his Ganese-citizen wife, Apollonia Sowah, and married Collins, a U.S. citizen. He applied for unconditional permanent resident status in 1990 and separated from Collins at about that time, according to the opinion. After his petition was denied and deportation proceedings were initiated for marriage fraud, he remarried his first wife in under the name Kofi Obese.
The immigration judge denied deportation and the government appealed, but the panel said the BIA “inexplicably” did not decide the appeal until 2000, when it remanded it for further proceedings. In the meantime, Sowah immigrated to the U.S. and she and Acquaah had a child here, after which Acquaah applied for and was granted conditional permanent residence status under the Obese name in 1996. Acquaah and Collins divorced in 2003.
The question of permanent residency based on the Collins marriage came to a hearing in 2011, at which Acquaah did not mention his remarriage and child, the opinion said. The immigration judge granted him unconditional permanent residency.
The day after the hearing, fingerprint results came back showing Acquaah and Obese were the same person, and in 2013, the U.S. Department of Homeland Security‘s motion to reopen deportation proceedings for marriage and identity fraud was granted. An immigration judge found his 2011 testimony was not made in good faith and the Collins marriage was fraudulent.
The judge also said Acquaah was not eligible under the law for a fraud waiver, which can be granted at the discretion of the U.S. Attorney General for aliens with U.S. citizen children, among other reasons.
The decision was upheld by the BIA, but where the immigration judge found only immigrants committing fraud upon entry to the country were eligible for the waiver, the board found Acquaah was not eligible because he was not being deported for fraud but for having his residence status terminated.
Acquaah appealed the BIA decision, arguing the under the language of the statue waivers can be applied to both formal fraud charges and charges “directly resulting” from fraud, and the panel agreed.