Case: 22-60111 Document: 00516722853 Page: 1 Date Filed: 04/24/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 24, 2023 No. 22-60111 Lyle W. Cayce Clerk Leaphiny Reese; Thou Samphear, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A089 360 354 Agency No. A089 581 178 Before Higginbotham, Smith, and Engelhardt, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: A federal jury convicted Leaphiny Reese and Thou Samphear (“Petitioners”) of visa fraud, and the government charged them with removability based on that conviction. Petitioners contend that the Board of Immigration Appeals (“BIA”) erred in holding that the visa fraud waiver could not overcome the grounds for their removal. Petitioners also raise a due process claim and issues the BIA did not address. We find that the visa fraud waiver does not reach Petitioners’ grounds for removal, we lack jurisdiction Case: 22-60111 Document: 00516722853 Page: 2 Date Filed: 04/24/2023 No. 22-60111 over the claims the BIA did not reach, and we determine that Petitioners failed to show a violation of their due process rights. The petition for review is DISMISSED in part for lack of jurisdiction and DENIED in part. I. Reese and Samphear are Cambodian citizens who traveled to the United States on visitor visas,1 entered into fraudulent marriages with U.S. citizens, and resided together as common law spouses in the United States. A federal jury convicted them of several crimes arising from the fraudulent marriages, including fraud and misuse of a visa, permits, and other documents in violation of 18 U.S.C. § 1546(a).2 The pair received notices to appear and conceded removability under 8 U.S.C. § 1227(a)(1)(D)(i) for termination of conditional permanent residence and 8 U.S.C. § 1227(a)(3)(B)(iii) for violation of § 1546. Petitioners filed applications under 8 U.S.C. § 1186a(c)(4) for hardship waivers to overcome removability for termination of their conditional permanent residence. They also filed applications under 8 U.S.C. § 1227(a)(1)(H) to waive removability for their visa fraud convictions. The Immigration Judge (“IJ”) addressed only the fraud waiver, rea- soning that ineligibility for that waiver obviated the need to consider the hard- ship waiver because Petitioners would remain deportable for fraud regard- less. The IJ first reasoned that a § 1227(a)(1)(H) fraud waiver requires, in 1 Petitioners most recently entered the United States as conditional residents, status granted based on their marriages to U.S. citizens. 2 Petitioners were also convicted of conspiracy to commit marriage fraud and benefit fraud under 18 U.S.C. § 371 and 8 U.S.C. §§ 1325(c), 1546(a), as well as aiding and abetting marriage fraud under 18 U.S.C. § 2 and 8 U.S.C. § 1325(c). 2 Case: 22-60111 Document: 00516722853 Page: 3 Date Filed: 04/24/2023 No. 22-60111 part, that the applicant be “otherwise admissible to the United States.” 3 Be- cause Petitioners were convicted of marriage fraud, a crime involving moral turpitude, the IJ found that they would not be otherwise admissible.4 …
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