                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 15-1926

                            DOROWAA APPIAH,

                               Petitioner,

                                     v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,

                               Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                                  Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
     Andrew B. Insenga, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Douglas E. Ginsburg, Assistant Director, Office of
Immigration Litigation, on brief for respondent.


                           October 18, 2016
           KAYATTA,   Circuit    Judge.       In   2002,   Dorowaa   Appiah

("Appiah") entered the U.S. with a visa procured as the derivative

of a diversity visa obtained by her then-husband, Wilberforce

Appiah   ("Wilberforce").       The   Department   of   Homeland   Security

("DHS") eventually figured out that Wilberforce was an alter ego

created by David Mensah ("Mensah") after he naturalized in 2001.

In brief, Mensah created the fake identity, secured a fraudulent

visa in Wilberforce's name, and then used that visa to obtain a

visa for Appiah.

           DHS subsequently charged Appiah with removability under

8 U.S.C. § 1227(a)(1)(A) for not being in possession of a valid

visa at the time of her entry.          In opposition, Appiah filed an

affidavit claiming that she did not know Mensah and that it was

not until after her naturalization interview that she learned of

the identity fraud.     Her visa application from 2001, however,

listed Mensah not only as the person she would be living with at

her permanent address but also as her visa sponsor. Appiah further

sought relief under the waiver provision of 8 U.S.C. § 212(k),

which states:

           Any alien, inadmissible from the United States
           under paragraph (5)(A) or (7)(A)(i) of
           subsection (a) of this section, who is in
           possession of an immigrant visa may, if
           otherwise admissible, be admitted in the
           discretion of the Attorney General if the
           Attorney    General    is    satisfied    that
           inadmissibility was not known to, and could
           not have been ascertained by the exercise of


                                      - 2 -
            reasonable diligence by, the immigrant before
            the time of departure of the vessel or
            aircraft from the last port outside the United
            States   and   outside    foreign   contiguous
            territory or, in the case of an immigrant
            coming from foreign contiguous territory,
            before the time of the immigrant's application
            for admission.

            The   immigration    judge    ruled    against   Appiah     on   both

grounds.     Specifically, the judge found that because Mensah's

Wilberforce visa was invalid (as a product of fraud), so too was

Appiah's; that Appiah was therefore inadmissible because she had

no valid visa; and that she was not eligible for waiver of

inadmissibility under § 212(k) because she did not seek the waiver

in conjunction with an application for admission or adjustment of

status.

            The BIA dismissed Appiah's subsequent appeal, ruling

that:    (1) she "did not satisfy her burden of proving by clear and

convincing evidence that she is lawfully in the United States,"

and (2) she was not eligible for a waiver of admissibility under

§ 212(k) for the reason stated by the immigration judge, and also

because she had not "sufficiently demonstrated her eligibility for

such a waiver."

            Appiah did not appeal the BIA's decision.             Rather, she

sought     reconsideration,     which    was     denied,   and   then    timely

petitioned for review of only the denial of reconsideration.                  We

therefore limit our review to examining the BIA's denial for an



                                         - 3 -
abuse of discretion.          See Asemota v. Gonzales, 420 F.3d 32, 34

(1st Cir. 2005) ("Our review of the BIA's denial of petitioner's

motion to reconsider is for abuse of discretion.           We will find an

abuse of discretion only where . . . 'the denial was made without

a "rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis" (such as race).'"

(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (internal

citations omitted))).

               As far as the finding that Appiah is inadmissible because

she is not lawfully in the United States, the parties agree that

the BIA erred as a matter of law in stating that Appiah bore the

burden    of    proving    lawful    presence.    Nevertheless,   given    the

evidence showing that the visa issued to Mensah's fictitious

Wilberforce alias was invalid, it follows that Appiah's visa was

invalid    for    the     purposes   of   admissibility.   See    Matter    of

Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2013).          Therefore, the

BIA's error provides no reason to remand.              See NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 766 n.6 (1969).          Indeed, even on appeal,

Appiah offers no argument that Mensah's alias visa was valid, or

that its invalidity did not per force invalidate her visa ab

initio.

               As for the § 212(k) waiver, it was not an abuse of

discretion for the BIA to find that Appiah failed to make the

required showing that she was reasonably diligent in ascertaining


                                          - 4 -
her admissibility prior to entry.     Indeed, her own statements,

described above, suggested that she very likely knew of the

chicanery and certainly made no efforts to confirm the relationship

between Wilberforce--the purported name of her then-husband--and

Mensah--the name she listed on her visa application.   All in all,

the record does not compel a finding of reasonable diligence by

Appiah in her professed failure to learn that Wilberforce and

Mensah were one and the same.1

          We therefore deny Appiah's petition for review.




     1 We therefore need not consider or resolve the parties'
dispute concerning whether § 212(k) would be applicable had Appiah
demonstrated such diligence.


                                 - 5 -
