Removal; The Immigration & Naturalization Act (INA); Whether the immigration judge (IJ) erred by failing to advise petitioner of her apparent eligibility for a “fraud waiver” of removability under INA § 237(a)(1)(H) (8 USC § 1227(a)(1)(H)); 8 CFR § 1240.11(a)(2); Eligibility for the fraud waiver; “Failure to appear”; § 1186a(c)(1)–(2); Whether the IJ erred by not informing petitioner of her right to apply for asylum (a violation of department regulations); Board of Immigration Appeals (BIA); Conditional permanent resident (CPR); Immigration & National Service (INS)

The court denied petitioner-Seldon’s petition for review of the BIA’s dismissal of her appeal from an order of removal. It held that the IJ did not err by failing to inform her she had the right to apply for a fraud waiver of removal because she was not “apparent[ly] eligible” for the waiver. It also held that the “IJ did not err when he did not inform Seldon of her right to apply for asylum.” She entered the country from Nigeria in 1992, using her sister’s passport and a tourist visa. She later “married a U.S. citizen and obtained [CPR] status.” When she petitioned for removal of conditions, the INS determined “her marriage was a sham. And when she was confronted with tough questions by officials, she ended the interview[.]” The INS construed her “‘unwillingness to answer questions’ as a ‘failure to appear as required for an interview on [the] petition.’” Because a failure to appear “is a statutory basis to terminate permanent residence, the INS revoked her” CPR status and she was later ordered removed. But she was not removed, and two decades later, she appeared for a contested removal hearing before an IJ, who denied her applications to stay in the U.S. and she was again ordered removed. She unsuccessfully appealed to the BIA “on the grounds that the IJ failed to inform her of her rights to apply for a waiver of removal and to seek asylum.” The court noted Seldon conceded that the IJ’s duty to inform only extended to waivers “for which she was ‘apparently eligib[le].’” The issue then was whether she was “apparent[ly] eligible” for the fraud waiver—§ 1227(a)(1)(H). The government argued “the waiver does not operate to cure her inadmissibility based on the termination of her” CPR status. Thus, the question was “whether, in circumstances like Seldon's, the fraud waiver may waive inadmissibility based on a termination of” CPR status. The court concluded her “constructive failure to attend the interview is not sufficiently related to her fraudulent representations to render her ‘apparent[ly] eligib[le]’ for a fraud waiver.” Her refusal to answer questions was conduct that was “independent from the fraud itself.” The court noted that failure to appear constituted “an independent ground for terminating [CPR] status, regardless of whether the interviewee’s marriage was fraudulent.” The IJ did not err in “failing to inform her of the right to apply for” the fraud waiver. As to the failure to inform her of her right to apply for asylum, the IJ stated twice “on the record that he had ‘not heard anything about a fear of returning to Nigeria’ in” any of the proceedings, without any objection from Seldon’s counsel (whom she did not assert was ineffective).