Tukur Seldon v Garland: Sixth Circuit Affirms Immigration Judge Has No Duty to Inform of Fraud Waiver Eligibility

By Richard T. Herman, Esq.

Immigration Articles, Immigration News, 8 min read

On October 31, 2024, the Sixth Circuit Court of Appeals in Cincinnati decided Tukur Seldon v. Garland, No. 23-3685 (6th Cir. 2024), which addressed the scope of the Immigration Judge’s duty to inform of fraud waiver eligibility and duty to inform of asylum eligibility, particularly in the context of the asylum seldon case.

Here’s the breakdown:

Holding

Immigration Judge (IJ) had no duty to inform of fraud waiver since Petitioner was not “apparently eligible” for a fraud waiver. Her conditional permanent residency was terminated due to her constructive failure to attend interview (refused to answer questions from USCIS officer) not just because her underlying marriage was deemed to be fraudulent.

IJ had no duty to inform of asylum since Petitioner’s counsel confirmed during the hearing she had no intention of filing for asylum and she expressed no current fear of returning to Nigeria. Seldon failed to express any current fear of returning to Nigeria during her hearings.

Takeaway

As a general matter, don’t refuse to answer questions during a USCIS interview. USCIS will deem the application abandoned and that will hurt your future opportunities for a fraud waiver in immigration court.

Have detailed discussions with counsel before any hearings related to asylum claims. Failing to assert those rights early and worse, telling the court there are no such claims will often preclude that form of relief if later sought or at the minimum destroy a future claim that the IJ failed to inform of all available relief.

Background: Conditional Permanent Residence and Removal Proceedings

Entry to the United States

Safiya Seldon entered the U.S. in 1992 using her sister’s passport and a tourist visa. She worked in Chicago as an undocumented nursing aide and had three U.S.-citizen children.

Marriage and Conditional Residency: Safiya Tayo Tukur Seldon

1997 she married Charles Seldon, a U.S. citizen and gained conditional permanent residency.
When she filed Form I-751 to remove the conditions on her residency in 2000 the INS suspected her marriage was fraudulent and she was interviewed. She stopped participating when questioned. Her conditional status was terminated and she was placed in removal.

Removal Proceedings and Challenges

2002 Seldon missed her first removal hearing and an in-absentia order of removal was entered.

2011 she reopened her case and claimed she didn’t receive notice of the hearing. This led to new hearings where Seldon concedes to various charges against her, including the termination of conditional residence and other fraud-related allegations, while disputing the charge of marriage fraud.

Renewed Removal Proceedings and Marriage Fraud Charge:

An Immigration Judge (IJ) in Detroit re-adjudicated her case, noting that Seldon relies on her arguments against the marriage fraud charge during the renewed removal proceedings, and ordered her removal to Nigeria.

BIA Appeal:

Seldon timely filed her appeal arguing the IJ failed to inform her of the option to file for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H) which would potentially waive her grounds of removal for fraud. She also argued the IJ failed to inform her of asylum.

The BIA denied her appeal stating she was not eligible for a fraud waiver and the IJ informed her of her asylum rights.

Sixth Circuit’s Decision

Circuit Judge Karen Nelson Moore and the Sixth Circuit judges affirmed the BIA’s decision and addressed each of Seldon’s arguments.

Fraud Waiver Eligibility Under 8 U.S.C. § 1227(a)(1)(H): Fraud Waiver Seldon Contends

Court’s Holding: The court held Seldon was not “apparently eligible” for a fraud waiver. A fraud waiver under § 1227(a)(1)(H) applies to those directly impacted by fraudulent misrepresentation.
Court’s Assumption: For the sake of argument the court assumed a fraud waiver might apply to cases under INA §237(a)(1)(D) which covers grounds of inadmissibility for fraud.
Constructive Failure to Attend Interview: Seldon’s stopping the interview was considered a constructive failure to participate not a direct act of fraud. Therefore her absence was not closely enough tied to fraudulent conduct to make her eligible for the waiver.
Petitioner’s Actions: The petitioner’s stopping the interview (a constructive failure to attend) was the heart of the case. She stopped the interview when asked about marriage fraud and that led to the removal order.
Eligibility for Fraud Waiver: Since her failure to participate in the interview didn’t stem from fraudulent misrepresentation she was not “apparently eligible” for a fraud waiver. The court held her stopping the interview didn’t show a clear link to any fraudulent misrepresentation which would have made her “apparently eligible” for a fraud waiver under 8 CFR §1240.11(a)(2).
No Duty Violated: The court found the IJ didn’t violate any duty to inform the petitioner of her right to file for a fraud waiver. The reason was the fraud waiver wouldn’t cure her situation just because she lost her conditional status.

Asylum Notification and Fear of Persecution

Argument: Seldon argued the IJ failed to inform her of her right to apply for asylum especially since she testified about past abuse and threats in Nigeria.
Court’s Analysis: Seldon testified about past abuse but her counsel confirmed during the hearing she had no intention of filing for asylum and expressed no fear of returning to Nigeria. The IJ noted this and confirmed no further applications would be filed.
Conclusion: Since counsel explicitly declined to file for asylum the IJ didn’t err by not advising her of this option. The court supported this by citing cases where petitioner’s counsel waived the need for asylum advice.

Seldon’s Argument: Fraud Waiver

Safiya Tayo Tukur Seldon contends that the immigration judge failed to inform her of her eligibility for a fraud waiver, which would have allowed her to remain in the United States despite her marriage fraud finding. Seldon argues that the judge’s failure to advise her of this option was a critical error that prejudiced her case.

She claims that she would have been eligible for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H), which allows for the waiver of certain immigration offenses, including marriage fraud. Seldon’s argument hinges on the idea that the immigration judge’s failure to inform her of this option denied her due process and violated her rights under the Immigration and Nationality Act.

The Immigration Judge’s Role in Informing Applicants

The Sixth Circuit Court of Appeals has emphasized the importance of proper notification and guidance from immigration judges in removal proceedings. The immigration judge’s role in informing applicants of their rights and options is a critical aspect of the removal proceedings process.

In this case, the judge’s failure to advise Seldon of her eligibility for a fraud waiver was not required inasmuch as even if she were eligible for the waiver, she would have been ordered removed anyway due to the termination of her permanent residency as the result of her constructive abandonment of her I-751 application.

Key Takeaways and Practical Applications

Constructive Failure vs. Fraud Waiver Eligibility:

To be eligible for a fraud waiver there must be a direct link between the petitioner’s fraudulent action and the ground of removal. Constructive actions like stopping an interview (as in Seldon’s case) don’t meet this test.
If you are facing removal it’s important to understand that actions that are perceived as independent of direct misrepresentation may not be covered by waivers for fraud.

Counsel’s Role in Asylum and Relief Options

The case highlights the role of counsel in immigration proceedings. Statements by counsel about the petitioner’s intentions or lack of fear carry a lot of weight. Here Seldon’s counsel’s statements negated the need for asylum advice.
The court’s decision also highlights the need for clear communication between petitioners and counsel. Since Seldon’s counsel confirmed she had no fear of returning to Nigeria it impacted her asylum eligibility and the IJ’s duty to advise her of asylum options.
For those in removal proceedings fear or intention to apply for asylum is key. Without these indicators IJs don’t have to advise of asylum options as shown in this case.

Consistency in Testimony and Documents: Seldon Testified

The court noted Seldon’s history of inconsistent statements which hurt her credibility. For those in similar situations, consistency in documentation and testimony is key to a stronger case.

The Sixth Circuit in Tukur Seldon v. Garland held that the IJ’s duty to advise is limited when the petitioner’s actions don’t qualify them for the relief.