NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 10, 2014*
Decided June 24, 2014
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐3085
HANI HASSAN BAYARI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A095‐ 922‐ 712
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER
Hani Hassan Bayari, a 62 year‐old Jordanian citizen, challenges his removal order for
falsely claiming United States citizenship and lacking proper travel documents when he
entered the United States. Though he admits to twice using a fake United States passport
*
After examining the briefs and the record, we have concluded that oral argument
is not necessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 13‐3085 Page 2
to enter the country, he asserts that he later withdrew his claim of United States citizenship
when he admitted the fraud to a federal investigator. Substantial evidence supports the
agency’s decision, so we deny the petition.
Bayari entered the United States on a tourist visa in 1996 and overstayed. Twice—in
1999 and 2001—he left to visit his family in Jordan and each time used a fake United States
passport to reenter the United States. He married a United States citizen in 2002 (his third
marriage) and based on the marriage applied for adjustment of status in 2003. In 2004,
while the application was pending, the Department of Justice’s Office of the Inspector
General questioned Bayari in connection with an investigation into passport fraud, and he
admitted using a fake passport. Notwithstanding that admission, Bayari’s application for
adjustment of status was approved later in 2004, and he became a lawful permanent
resident. In 2007, he applied for naturalization with U.S. Citizenship and Immigration
Services (USCIS).
In 2009, however, USCIS denied Bayari’s application for naturalization. The agency
informed Bayari that he was ineligible for citizenship on two grounds. First he had
fraudulently concealed information in 2003 when he applied for permanent residency—(1)
he excluded in his application any mention of the fake passport, and (2) in connection with
that application, he failed to disclose his 1999 and 2001 sojourns by telling the interview
officer that he had last entered the United States in 1996. The second ground for his
ineligibility was misrepresenting in his 2007 application for naturalization that he had
neither claimed to be a United States citizen nor lied to a United States official to enter the
country.
Bayari appealed, but a USCIS field officer upheld the denial of his application for
naturalization, citing Bayari’s use of the fake passport, his concealment of the fraud in his
applications for adjustment of status and naturalization, and his remarriage to his second
wife in Jordan while remaining married to his third wife in the United States. An
adjudications officer from the Department of Homeland Security then promptly issued
Bayari a Notice to Appear, charging him as removable because he “falsely represented[]
himself to be a citizen of the United States” to obtain an immigration benefit, 8 U.S.C.
§ 1227(a)(3)(D), failed to possess required suitable travel documents, id. § 1182(a)(7)(A)(i)(I),
failed to disclose that he traveled outside the United States and used a fake United States
passport to reenter, id. § 1182(a)(6)(C)(i), and came to the United States to practice
polygamy, id. § 1182(a)(10)(A).
No. 13‐3085 Page 3
At his hearing before an immigration judge, Bayari acknowledged his knowing use of
the fake passport, but argued that the IJ should excuse the fraud because he needed the
passport to visit his children in Jordan. He added that he had retracted his false
representation of himself as a United States citizen by admitting to twice using a fake
passport; he made this admission in a 2004 interview (in connection with an independent
investigation of the person who sold him the passport) with Agent Semmerling, an
investigator working for the Department of Justice’s Office of the Inspector General. He
also contended that he was entitled to assert the defense of equitable estoppel because, he
said, Semmerling told him not to discuss the fake passport with immigration officials
during the pendency of the DOJ’s investigation. According to Bayari, investigators did not
permit him to discuss the passport with USCIS until his application for naturalization was
denied.
The IJ found Bayari removable based on his knowing and willful use of a fake
United States passport to enter the United States in 1999 and 2001, and his entry into the
United States without valid documents. See 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), 1227(a)(3)(D).
After the IJ announced his findings, Bayari asserted “for purposes of the record” that
Semmerling’s testimony could bolster his defense of equitable estoppel by corroborating
his testimony that she told him not to discuss his use of the fake passport with USCIS. The
IJ rejected the argument as irrelevant because any testimony from Semmerling about her
interview with Bayari in 2004 post‐dated Bayari’s use of the fake passport in 1999 and 2001.
The Board upheld the IJ’s conclusion that Bayari was removable for (1) using a fake
passport to travel to the United States in 1999 and 2001 and (2) entering the United States
without valid documents. As for Bayari’s argument that he timely retracted any false claim
by acknowledging his scheme to investigators, the Board found that Bayari did not
voluntarily recant any prior false testimony and in fact waited years before divulging
details of his circumstances, even then doing so only upon questioning during the federal
investigation. The Board also agreed with the IJ’s rejection of Bayari’s equitable estoppel
defense; any alleged misconduct on Semmerling’s part, the Board explained, occurred
years after the events in 1999 and 2001 and thus did not bear upon Bayari’s illegal entries.
The Board noted further that Bayari did not challenge the IJ’s decision that he was
removable for entering the United States without valid documents.
In this petition Bayari challenges the Board’s rejection of his argument that he timely
retracted any false representation of himself as a United States citizen. The disclosure to
Semmerling in August 2004 was a timely retraction, he maintains, because it was “the first
opportunity he had” to discuss the fake passport “with any U.S. government official.”
No. 13‐3085 Page 4
The Board did not err in concluding that Bayari’s disclosure to Semmerling did not
qualify as a retraction. To prove that he retracted or recanted a false representation of
citizenship, Bayari needed to show that he corrected the false representation “voluntarily
and prior to any exposure of the attempted fraud. . . . [W]hen a person supposedly recants
only when confronted with evidence of his prevarication, the amelioration is not available.”
Valadez‐Munoz v. Holder, 623 F.3d 1304, 1309–10 (9th Cir. 2010) (quotations omitted). As the
Board noted, however, Bayari’s disclosure to Semmerling was not made voluntarily but
rather was motivated by the government’s investigation. See Eid v. Thompson, 740 F.3d 118,
125 (3d Cir. 2014) (retraction prompted by government investigation insufficient); Lazar v.
Gonzales, 500 F.3d 469, 473, 478 (6th Cir. 2007) (confession of false statements motivated by
government’s submission of contrary evidence insufficient). Moreover, the Board noted,
Bayari’s disclosure came too late—five years after he first used the fake passport to
successfully reenter the United States in 1999 and three years after he repeated the offense
in 2001. See Eid, 740 F.3d at 125 (withdrawal of petition containing false statement untimely
where petition had already been approved).
Bayari also presses a variant of the estoppel argument—namely that the government
was equitably estopped from charging him with falsely representing himself as a United
States citizen because Semmerling instructed him not to discuss the fake passport with
immigration officials. He arguably failed to preserve this argument by not presenting it
first to the agency, see Aguilar‐Mejia v. Holder, 616 F.3d 699, 704 (7th Cir. 2010), but even if
Bayari did preserve this challenge, his argument is a non‐starter. He ignores the “open
question” whether equitable estoppel may even apply against the government to prevent
it from enforcing the law. Matamoros v. Grams, 706 F.3d 783, 793–94 (7th Cir. 2013)
(quotations omitted); see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422–23 (1990);
Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 60 (1984); Solis‐Chavez v.
Holder, 662 F.3d 462, 471 (7th Cir. 2011). And even assuming that the defense could apply,
Semmerling’s conduct in 2004 was irrelevant, as the IJ and Board found, because it
postdated Bayari’s false representation of himself in 1999 and 2001 as being a United States
citizen.
Relatedly, Bayari contends that the IJ denied him a “full and fair hearing” by deciding
his case without allowing him to call or cross‐examine Semmerling as a witness. He asserts
that he followed Semmerling’s guidance “to his detriment” and that her testimony about
their interview in 2004 could have an “impact” on his defenses. But again, as the IJ and
Board found, Semmerling’s testimony regarding the 2004 interview would not bear upon
whether Bayari illegally entered the United States years earlier in 1999 and 2001.
No. 13‐3085 Page 5
Lastly, to the extent that Bayari wishes to challenge the alternative basis for the
removal order—entering the United States without proper travel documents, see 8 U.S.C.
§ 1182(a)(7)(A)(i)(I); Estrada‐Canales v. Gonzales, 437 F.3d 208, 219, n.12 (1st Cir. 2006); Perez‐
Rodriguez v. I.N.S., 3 F.3d 1074, 1079 (7th Cir. 1993)—he has forfeited any challenge by not
developing an argument before the Board or us, see Aguilar‐Mejia, 616 F.3d at 704.
Because Bayari’s appeal lacks merit, we DENY the petition for review.