Hassan v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0130p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

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NABIL TAISEER HASSAN and SAWSAN

Petitioners, --

HASSAN,

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No. 09-3243

,

>

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v.

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Respondent. -

ERIC H. HOLDER, JR.,

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On Petition for Review from a Final Order

of the Board of Immigration Appeals.

Nos. A045 040 944; A073 407 621.

Submitted: April 23, 2010

Decided and Filed: May 11, 2010

*

Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge.

_________________

COUNSEL

ON BRIEF: Eman H. Jajonie-Daman, JAJONIE DAMON, P.C., Southfield, Michigan,

for Petitioners. Kiley L. Kane, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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CORNELIA G. KENNEDY, Circuit Judge. Petitioners Nabil and Sawsan

Hassan appeal a Board of Immigration Appeals (“Board” or “BIA”) order affirming an

immigration judge’s finding that Petitioners were removable under 8 U.S.C.

§§ 1227(a)(1)(A) and 1227(a)(3)(D). Petitioners also appeal the Board’s denial of their

*

The Honorable Robert Leon Jordan, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

1

No. 09-3243 Hassan v. Holder Page 2

motion to remand the record so that they could apply for a waiver of admissibility.

Finally, Petitioners appeal the Board’s ruling that the immigration judge’s failure to

recuse herself did not amount to a due process violation. For the reasons set forth below,

we AFFIRM in part and REVERSE in part the judgment of the Board of Immigration

Appeals.

FACTUAL/PROCEDURAL BACKGROUND

Petitioner Nabil Hassan is a 48-year-old Muslim man who was born and raised

in Jerusalem, Israel and identifies himself as a Palestinian. Petitioner Sawsan Hassan

(née Wadi) is a 40-year-old Muslim woman who was also born and raised in Jerusalem

and identifies herself as Palestinian. It is undisputed that Nabil and Sawsan are presently

married and have four children, all of whom were born in the United States. What is

primarily at issue in this case is when the Hassans’ marriage took place.

Nabil Hassan was admitted to the United States on March 25, 1995 at New York

City on an F-24 Immigrant Visa, which is reserved for unmarried children of lawful

permanent residents (“LPRs”). Hassan qualified for this visa because his mother was

living in the United States and had LPR status. Sawsan Hassan entered the United

States on the same day as Nabil and was admitted to the country on a Nonimmigrant

Tourist Visa. On April 10, 1995, Nabil and Sawsan had a small wedding ceremony at

a mosque in Michigan and signed documents to certify their marriage. On May 4, 1995,

Nabil filed an I-130 petition on behalf of Sawsan, requesting that her immigration status

be adjusted to LPR on the basis of their marriage. On August 11, 1995, the government

granted that request.

On December 29, 1999, Nabil filed an application for naturalization. Daniel

Wells, then a district adjudications officer for the Immigration and Naturalization

Service,1 was assigned to investigate and adjudicate Nabil’s application. On July 27,

2000, Officer Wells conducted an in-person interview of Nabil Hassan as part of his

1

The Department of Homeland Security has since replaced the Immigration and Naturalization

Service as the government agency handling immigration matters.

No. 09-3243 Hassan v. Holder Page 3

investigation. Based on Nabil’s answers to certain questions during the interview,

Officer Wells became suspicious that Nabil and Sawsan had in fact married sometime

before their 1995 entry in the United States. Based on the interview and the results of

an investigation of the Hassans’ marital status in Jerusalem prior to their entry into the

United States, Nabil’s naturalization application was denied.

On May 23, 2002, the government served Nabil Hassan with a Notice to Appear

(“NTA”), alleging that: 1) he had married Sawsan before entering the United States;

2) the marriage automatically revoked his visa under 8 C.F.R. § 205.1(a)(3)(i)(I); and

3) he was removable under 8 U.S.C. § 1227(a)(1)(A) because he was actually an

inadmissible alien at the time of his entry into the country. Because Sawsan’s

immigration status was based on Nabil’s status, the government also issued an NTA to

Sawsan alleging that she too was removable for lacking a valid immigration visa. The

government later added two other charges of deportability to Nabil’s NTA, including

that he was removable under 8 U.S.C. § 1227(a)(3)(D) as an alien who falsely

represented himself as a U.S. citizen for any purpose or benefit under the Immigration

and Nationality Act (“INA”) or any other federal or state law. This additional charge

was based on an allegation that on March 27, 2001 and May 16, 2001, Nabil falsely

represented himself as a U.S. citizen on a Small Business Administration loan

application form. Petitioners denied the pertinent allegations, including the claim that

they had married prior to their entry in the United States.

I. Merits Hearing and Testimony

At a November 29, 2005 merits hearing, Immigration Judge Marsha K. Nettles

heard the testimony of seven witnesses: 1) Officer Daniel Wells; 2) Imam Mohammed

Mardini; 3) Ismail, Ayoub, and Ibraham Hassan–Nabil’s three brothers; and

4) Petitioners Nabil and Sawsan Hassan. The testimony of these witnesses is

summarized below.

No. 09-3243 Hassan v. Holder Page 4

A. Testimony of Officer Daniel Wells

Daniel Wells testified that he was the immigration officer in charge of

investigating and adjudicating Nabil Hassan’s application for naturalization. During his

initial investigation, he had noted that the Hassans’ first child must have been conceived

prior to their April 10, 1995 wedding in Michigan.2 According to Wells, this was a very

uncommon occurrence among applicants from the Middle East. Suspicious that the

Hassans had actually been married at an earlier date, Officer Wells questioned Nabil

about these suspicions at Nabil’s naturalization interview on July 27, 2000. According

to Wells, Nabil admitted that he and Sawsan had in fact been married before they entered

the United States. Wells then typed up a statement for Nabil to sign that included this

admission. Nabil refused to sign the statement, however, asserting that it was untrue.

Officer Wells then typed up a second statement that did not include the admission, and

which Nabil signed. Officers Wells, however, later made his own notation on this

statement that Nabil’s “story changed.”

Officer Wells testified that he then asked the U.S. Embassy in Israel to conduct

an investigation into whether Nabil and Sawsan had been married in Israel. According

to Wells, an officer at the Embassy eventually provided the results of its investigation

in a letter that it sent to him via facsimile; that letter indicated that the Israeli Ministry

of the Interior had an official record of Petitioners’ marriage that predated their entry

into the United States.3 Based on this confirmation, the age of the Hassans’ first child,

and Nabil’s own statements in the naturalization interview, Officer Wells denied Nabil’s

application and initiated removal proceedings against him and Sawsan.

2

Officer Wells initially testified that he had determined that the baby had been born before the

wedding. However, upon later questioning by the IJ, Wells corrected himself and stated that his belief at

the time was that the child had in fact been conceived before the wedding.

3

See infra at 7-8.

No. 09-3243 Hassan v. Holder Page 5

B. Testimony of Imam Mohammed Mardini

Mohammed Radwan Mardini, a Detroit-area imam who worked for the Michigan

Department of Corrections and the American Muslim Center, testified as an expert

witness regarding Muslim marriage customs. Mardini testified that Islamic marriages

involve four steps, each of which must be completed before a marriage is considered

finalized. The first step is called Al Fatha, and consists of the man and woman’s

families meeting and reading from the Koran. The second step is called Al Khuba,

which is the engagement and includes the man giving the woman a ring. The third step

is called Kateb al Ketab, which involves the parties drafting and signing a marriage

contract, which would include the dowry terms and any other conditions placed on the

marriage. Mardini testified that the father of one of the families is typically given a

copy of the contract, and the contract is also filed with the Sharia court and the civil

records department. The fourth and final step is the marriage celebration and the

consummation of the marriage. This is the most important step in the marriage process

and must be completed before the couple is considered married.4

C. Testimony of Nabil’s Three Brothers

Nabil Hassan’s brothers–Ismail, Ayoub, and Ibraham–all testified at the merits

hearing regarding Nabil and Sawsan’s wedding ceremony in Michigan on April 10, 1995

(which occurred some ten years before the merits hearing) and regarding Nabil and

Sawsan’s living arrangements in Michigan prior to their wedding. Although there were

some inconsistencies among their statements at the hearing, the three brothers generally

testified that Nabil and Sawsan had a small wedding ceremony with family members at

a nearby mosque and a small celebration after the ceremony at the home of Nabil’s

oldest brother. Prior to the wedding, Nabil had resided with that brother, and Sawsan

lived in a different dwelling with another of Nabil’s brothers and his family. Ibraham,

Ayoub, and Ismail all lived in Michigan at the time when Nabil and Sawsan first entered

4

This testimony was also confirmed by uncontested documentary evidence entered into the

record. See infra at 7.

No. 09-3243 Hassan v. Holder Page 6

the United States; consequently, none of the brothers had personal knowledge as to what

steps Nabil and Sawsan had taken in Jerusalem with respect to their marriage process.

D. Testimony of Nabil Hassan

Nabil also testified at the merits hearing. According to Nabil, he and his family

had known Sawsan and her family for years. This connection led Nabil and Sawsan to

become romantically involved some time in early 1994. At the end of 1994, Nabil’s

mother had filed a visa application on his behalf that would authorize his entry into the

United States. In February 1995, Nabil became engaged to Sawsan. Nabil testified that

on February 24, 1995, the families created a written engagement contract, and that a

Sharia agent named Nasra helped the families create the document and then file it with

the appropriate authorities. Nabil claimed that he and Sawsan did not finalize their

marriage in Jerusalem, however. Instead, they waited until April 10, 1995, when they

had their ceremony in the mosque and celebration in Michigan.

With respect to his naturalization interview, Nabil testified that he never told

Officer Wells that he had been married in Jerusalem prior to his entry into the United

States. He claimed instead that Officer Wells had both confused him and threatened

him, yelling that Muslims do not have children out of wedlock, that Nabil and Sawsan

must have been married in Jerusalem, and that Nabil would be deported.

Regarding his SBA loan application forms, Nabil did admit that there were

inaccuracies on the forms and that he had signed them. Nabil claimed, however, that he

did not know that the forms were inaccurate at the time he signed them. He testified that

the forms were actually filled out by his financial advisor, that he did not know if his

citizenship status would affect his loan status, and that he was eligible for the loan

regardless of his status. Indeed, Nabil testified that he had filed two other SBA loan

applications earlier, indicating on each that he was a resident alien. Each of those loans

was approved.5

5

Nabil also testified that he had failed to include his prior misdemeanor conviction on one of the

applications in question. But he explained that he omitted it because he did not think that his

conviction–Second Degree Retail Fraud–was in fact a criminal offense because it was a misdemeanor.

No. 09-3243 Hassan v. Holder Page 7

E. Testimony of Sawsan Hassan

Sawsan Hassan also testified at the merits hearing and essentially corroborated

Nabil’s testimony with regard to the timeline of their marriage process.

F. Documentary Evidence

In addition to the testimony of the aforementioned witnesses, the immigration

judge also received several documents into evidence without objection. One was an

affidavit from an imam in Jerusalem outlining the Muslim marriage process. The

affidavit essentially corroborated the testimony of Imam Mardini and it also affirmed

that a Muslim marriage is not complete until the wedding ceremony, celebration, and

consummation all take place. The affidavit also states that the time lapse between the

completion of the marriage contract and the occurrence of the wedding ceremony and

consummation will vary from couple to couple, and could potentially take years to

complete.

Also admitted into the record was an affidavit from Abdul Jabbar Nasra, a Sharia

court agent in Jerusalem. In the affidavit, Nasra stated that he “concluded” the marriage

contract between Nabil and Sawsan Hassan on February 24, 1995. He indicated that the

identification number for that contract was 3769. He also stated that he did not know

whether or when the couple performed the final steps of their marriage process.

The IJ also admitted into evidence two letters from the United States Embassy

in Israel. The first letter, dated March 4, 2002, is addressed to Officer Wells and is

signed by a “Fraud Prevention Investigator” in the Fraud Prevention Unit of the

Embassy. The relevant portions of the letter are as follows:

We have received your inquiry from February 27th, 2002, requesting that

an investigation on subject [Nabil Hassan]’s previous marriage be

conducted.

This omission was not a basis for any of the government grounds for removal, however, and the

immigration judge did not rely on this omission in any way in her merits opinion in Nabil’s removal

proceedings.

No. 09-3243 Hassan v. Holder Page 8

I contacted the Ministry of Interior in order to verify [sic] previous

marriage. According to their database, Subject was married to Sawsan

Wadi (born on the 4th of June 1969) on the 24th of Febraury 1995 in

Jerusalem. Subject and his wife left Israel on the 25th of March 1995.

Please note that the information received from the Ministry of Interior

should remain confidential. Subject should not know how we obtained

the above information.

A second Embassy letter admitted into evidence is dated November 29, 2005.

This letter is labeled as a “Statement” and is signed by the same Fraud Prevention

Investigator as the first letter, as well as the “Fraud Prevention Manager and Immigrant

Visa Chief” of the Embassy’s Fraud Prevention Unit. The letter states the following:

The Israeli Ministry of the Interior (MOI) informed the Fraud Prevention

Unit that Nabil Hassan holder of the identity number [number provided]

and his wife, Sawsan Hassan (maiden name “Wadi”) holder if [sic] the

identity number [number provided] got married in Jerusalem on February

24, 1995 (marriage certificate number 3769). They used to live in Rasud

Amad, in East Jerusalem.

Our contact at the MOI has in hand a copy of Nabil Hassan’s marriage

certificate. Due to the Israeli privacy act they are unable to provide us

with any documents or written statement concerning the case. Therefore,

we approached the Sharia court in an attempt to obtain a copy of the

marriage certificate. I was told that the procedure of obtaining the

information could take a week. As soon as we receive the copy we will

fax it.

The government attorney assigned to the case did not receive this second letter until after

the record had been closed by the immigration judge. However, the government

successfully petitioned the IJ on January 22, 2007 to reopen the record so that this letter

could be admitted. The IJ granted that request in a January 22, 2007 hearing held for the

purposes of resolving the motion to reopen the record. The government has not stated,

at the January 22 hearing or at any other point, whether it has ever received the copy of

the marriage “certificate” from the Sharia court or the American Embassy. No such

copy was admitted into evidence by either party.

No. 09-3243 Hassan v. Holder Page 9

II. Decision of the Immigration Judge

On April 3, 2007, the immigration judge issued an oral decision finding

Petitioners removable as charged. The IJ first found that the Hassans were removable

under 8 U.S.C. § 1227(a)(1)(A) because they had married prior to their arrival in the

United States. To support her finding, the IJ first relied heavily on the Embassy letters,

which, according to the IJ, showed that Petitioners were in fact married in Jerusalem.

The IJ noted that the documents were hearsay evidence, but that the general rules of

evidence do not apply in the immigration setting and that the documents were

sufficiently reliable. The judge also cited Officer Wells’ conclusion that the Hassans

were married prior to their entry into the United States, as well as the fact that Petitioners

failed to produce the alleged marriage contract and did not adequately explain its

absence. Finally, the judge relied on her conclusion that Petitioners and Nabil’s

brothers were all not credible. The judge noted various discrepancies she saw in their

testimony, as well as Nabil’s alleged admission of prior marriage at the naturalization

interview.

The immigration judge next found that Nabil Hassan was removable under

8 U.S.C. § 1227(a)(3)(D) based on her determination that Nabil falsely represented

himself as a U.S. citizen on his SBA loan application. Based on her prior finding that

Nabil’s testimony was not credible, the judge rejected Nabil’s claim that he did not know

about the mistakes when he signed the application. The IJ also found that, even if the

mistakes were innocent, section 1227(a)(3)(D) does not require a showing of willfulness

or knowledge.

Finally, the IJ denied Petitioners’ request for voluntary departure because

Petitioners did not have valid travel documents. Petitioners traveled to the United States

from Jerusalem under Israeli travel documents but apparently do not have Israeli

passports.

No. 09-3243 Hassan v. Holder Page 10

III. Decision by the Board of Immigration Appeals as to Petitioners’ Appeals

On September 11, 2007, Petitioners filed a timely appeal before the Board of

Immigration Appeals. In addition to appealing the rulings of the IJ, Petitioners also

sought remand on the grounds that: 1) the IJ should have recused herself due to her

former role as a government immigration attorney; and 2) Petitioners were eligible for

waivers of inadmissibility under 8 U.S.C. §§ 1227(a)(1)(H) and 1182(k). On

February 17, 2009, the Board dismissed Petitioners’ appeal, affirmed the findings of the

IJ, and denied Petitioners’ motion to remand. The Board first rejected Petitioners’ claim

that the IJ should have recused herself, finding instead that the record contained no

evidence that the IJ demonstrated any bias or improper conduct. The Board then

affirmed the IJ’s finding that Petitioners were married prior to their entry into the United

States. Reviewing the record de novo, the Board relied first and foremost on the fact that

the “record contains Israeli documents indicating that the respondents were married, not

engaged, on February 24, 1995 . . . .”6 The Board then noted that Petitioners failed to

obtain a copy of the Israeli marriage certificate or “contradict the official record of the

February 24, 1995 marriage.” The Board also relied on the fact that the testimony

provided by Petitioners and their relatives was not credible.

The Board also affirmed the IJ’s determination that Nabil was removable on the

ground that he misrepresented himself as a U.S. citizen on his SBA loan application

forms. Without specifically addressing the issue of whether Nabil made this

representation knowingly or willfully, the Board concluded that he “provided the

information and signed the form.” The Board also noted that the relevant immigration

statute “does not contain the requirement that the misrepresentation be material.”

The Board also denied Petitioners’ motion to remand in order to apply for a

waiver of inadmissibility. The Board stated that in order to be eligible for such a waiver,

an alien must be “otherwise admissible.” Because the Board had ruled that Petitioners

had been married before their entry into the United States, which disqualified Nabil from

6

The Board’s reference here was to the Embassy letters, despite the fact that the letters were not

“Israeli documents” but rather letters essentially from the United States Department of State.

No. 09-3243 Hassan v. Holder Page 11

being an unmarried child of a lawfully permanent resident, the Board held that the

Hassans were not eligible for the waiver they sought. Finally, the Board explained that

the IJ’s failure to inform Petitioners of the availability of a waiver of inadmissibility was

irrelevant because Petitioners were not in fact eligible for any such relief.

This appeal followed.

ANALYSIS

I. IJ’s Failure to Recuse

Petitioners’ first argument on appeal is essentially a due process challenge to the

proceedings conducted by the IJ. In particular, Petitioners argue that the immigration

judge improperly refused to recuse herself from the proceedings. Because the Board in

this case issued an independent opinion as to this claim, we review the decision of the

Board as the final agency determination. See, e.g., Morgan v. Keisler, 507 F.3d 1053,

1057 (6th Cir. 2007) (internal citations omitted). Legal conclusions, such as whether or

not a petitioner has proven his or her due process claim, are reviewed de novo. See

Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998) (internal citations omitted).

Although Petitioners are entitled to due process in their removal proceeding, see

Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003), they have failed to show

that the IJ’s failure to recuse herself was a due process violation. “Reviewing an alleged

due process violation is a two-step inquiry: first, whether there was a defect in the

removal proceedings; and second, whether the alien[s] w[ere] prejudiced because of it.”

Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). At different points in their brief,

Petitioners point to three different alleged defects in the process they received: 1) the

immigration judge’s failure to recuse herself due to her previous job as a DHS trial

attorney and later as Chief Counsel of the Detroit DHS office; 2) the IJ’s failure to

recuse herself due to her previous “close working relationship” with Officer Wells; and

3) the IJ’s active questioning of the witnesses during the merits hearing.

None of the allegations on which Petitioners rely amount to a procedural defect,

however. Petitioners’ first allegation is based on the IJ’s allegedly inherent bias due to

No. 09-3243 Hassan v. Holder Page 12

her previous roles at Homeland Security. The government counters that Petitioners have

not pointed to any evidence in the record that suggests that the IJ even had a previous

position at DHS. While we agree that Petitioners have pointed to no evidence of this

assertion, in other proceedings we have taken judicial notice of the fact that Judge

Nettles did hold such positions before becoming an IJ. See Kawuwung v. Holder, 2009

WL 4882520 at *2 (6th Cir. Dec. 17, 2009) (noting that Judge Nettles had once been

Chief Counsel at DHS). Nevertheless, her former role at DHS does not, in itself, amount

to a procedural defect. Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir. 2009); see also

Petrov v. Gonzales, 464 F.3d 800, 803 (7th Cir. 2006) (“The Chief Counsel of a large

[government immigration] office is unlikely to play any role in routine decisions . . . .”).

An immigration judge does have an obligation to recuse him- or herself when he or she

has “served in governmental employment and in such capacity participated as counsel,

adviser or material witness concerning the proceeding or expressed an opinion

concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3). But

there is nothing in the record to suggest that the immigration judge here, while at DHS,

ever participated in Petitioners’ case in any of the capacities listed in the relevant statute.

Petitioners have not cited to any evidence in the record that suggests otherwise.

Petitioners’ second complaint is that the IJ had a “close working relationship”

with Officer Wells during her tenure at DHS. But this is a bald allegation with no

support in the record. In fact, Petitioners fail to cite any evidence that indicates that

Judge Nettles even knew Officer Wells while she was at DHS.

Petitioners’ final allegation is related to the IJ’s questioning techniques used at

the merits hearing. Petitioners assert that Judge Nettles “actively questioned” Officer

Wells, rehabilitated his credibility through her questions, and impermissibly helped DHS

meet its burden of proof. Immigration judges, however, have “broad discretion in

conducting” removal proceedings. Castellano-Chacon, 341 F.3d at 553. Furthermore,

IJs are statutorily authorized to “interrogate, examine, and cross-examine the alien and

any witness.” 8 U.S.C. § 1229a(b)(1); see Abdulahad, 581 F.3d at 296. Judge Nettles’

behavior did not amount to an abuse of this broad discretion or of Petitioners’ due

No. 09-3243 Hassan v. Holder Page 13

process rights. Although the record indicates that the judge took a somewhat active role

in the examination of several, if not all, of the witnesses, the judge was well within her

rights to do so. Accordingly, we affirm the Board’s decision rejecting Petitioners’ claim

that the IJ should have recused herself.

II. Removability Findings

Petitioners also appeal the Board’s affirmance of the IJ’s findings that Petitioners

were removable. The IJ found, and the Board affirmed, that the Hassans were removable

for two alternative reasons, either of which is sufficient on its own to justify their

removal. First, the IJ found that Petitioners were removable under 8 U.S.C.

§ 1227(a)(1)(A) because they were married prior to Nabil’s entry into the United States.

Second, the IJ found the Hassans removable under 8 U.S.C. § 1227(a)(3)(D) because

Nabil made a false claim of United States citizenship.

A. Standard of Review

In a removal proceeding for a previously admitted alien, the government “has the

burden of establishing by clear and convincing evidence that” Petitioners are removable.

8 U.S.C. § 1229a(c)(3)(A); see, e.g., King v. Holder, 570 F.3d 785, 787 (6th Cir. 2009).

Where, as here, the BIA reviewed the IJ’s decision de novo and issued its own separate

opinion, we review the BIA’s opinion as the final agency determination. Morgan, 507

F.3d at 1057. We review an immigration court’s removability determination under the

“substantial evidence” standard. Stolaj v. Holder, 577 F.3d 651, 657 (6th Cir. 2009).

Under this deferential standard of review, the Board’s decision must be affirmed if it is

“‘supported by reasonable, substantial, and probative evidence on the record considered

as a whole.’” Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (quoting Koliada v.

INS, 259 F.3d 482, 486 (6th Cir. 2001)). “We are not entitled to reverse ‘simply because

[we are] convinced that [we] would have decided the case differently.’” Id. (quoting

Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir. 1995)). Instead, the agency’s findings of

fact are “conclusive” unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Koulibaly v. Mukasey, 541

F.3d 613, 619 (6th Cir. 2008). In other words, “‘in order to reverse the BIA’s factual

No. 09-3243 Hassan v. Holder Page 14

determinations, the reviewing court must find that the evidence not only supports a

contrary conclusion, but indeed compels it.’” Mullai, 385 F.3d at 638 (quoting Klawitter

v. INS, 970 F.2d 149, 152 (6th Cir. 1992)).

B. Prior Marriage Finding

Nabil was granted an F-24 Immigrant Visa as an unmarried child of a lawful

permanent resident. Under 8 C.F.R. § 205.1(a)(3)(i)(I), Nabil (and Sawsan, derivatively)

would be deportable (via 8 U.S.C. § 1227(a)(1)(A)) if Nabil and Sawsan were actually

married when Nabil entered the United States. Accordingly, the government had the

burden to show by clear and convincing evidence that the marriage between Petitioners

occurred before their entry into the country. The validity of a marriage is determined by

the law of the place of celebration. Matter of Luna, 18 I. & N. Dec. 385, 386 (BIA

1983). Pursuant to Israeli law, the Sharia courts (and Sharia law) control personal status

matters of Muslims residing in Jerusalem. Matter of Darwish, 14 I. & N. Dec. 307, 308

(BIA 1973).7 The IJ found, and the BIA affirmed, that the government met its burden

of showing that the Hassans were previously married under this law. We hold, however,

that the evidence on the record, when viewed as a whole, compels the contrary

conclusion that the government did not offer clear and convincing evidence that

Petitioners had completed the steps required for a Muslim marriage under Sharia law

before entering the United States.

The crucial evidence offered by the government (and relied upon by the Board

in its decision) to prove the prior marriage was the two Embassy letters, which state that

the Israeli Ministry of the Interior had on file a document certifying that Petitioners were

7

The administrative record also contains an uncontested letter from the Library of Congress that

confirms the controlling nature of Sharia law. The letter, signed by a Senior Foreign Law Specialist of the

Library of Congress, states the following:

This letter responds to your request of June 27, 2007 for information on recognition of

marriages under the relevant laws in Jerusalem.

Israeli law, applied by Israel to the western part of the city from 1948 to today, and to

the eastern part following the 1967 Six Days War, similarly to the law of the Hashemite

Kingdom of Jordan (which controlled eastern Jerusalem from 1948 to 1967), recognizes

the jurisdiction of religious courts of recognized religious communities in matters of

personal status. These courts generally apply the relevant religious law. Shari-

(Moslem) courts apply Shari-a law to matters within their jurisdiction.

No. 09-3243 Hassan v. Holder Page 15

married in Jerusalem prior to their entry into the United States. For the purposes of our

review here, we will assume that these documents were admissible in the proceedings

despite the fact that they were entirely hearsay statements.8 See Dallo v. INS, 765 F.2d

581, 586 (6th Cir. 1985) (noting that the Federal Rules of Evidence do not apply in

immigration proceedings); but see Alexandrov v. Gonzales, 442 F.3d 395, 404-05 (6th

Cir. 2006) (noting that hearsay statements still pose problems in the immigration context

when those statements are highly unreliable). However, even if these documents were

perfectly reliable, they simply do not show that all four steps required of a Muslim

marriage had occurred in February 1995, as the Board asserts. The Embassy letters

indicate that the Israeli Ministry of the Interior has on file a “marriage certificate” of

Petitioners that is dated Febraury 24, 1995 and that has an identification number of 3769.

However, the letters indicate nothing more. Most importantly, they entirely fail to

specify whether the “certificate” attests to the completion of the entire marriage process,

or whether it simply attests to the completion only of the engagement contract, the third

step of the four marriage requirements. The record contains an uncontested affidavit

from Abdul Jabbar Nasra, a Sharia court agent in Jerusalem. In that affidavit, Nasra

states that he concluded the marriage contract on Febraury 24, 1995, and that the

contract was given the identification number 3769–the same number as the “certificate”

to which the Embassy letters refer. Nasra also states that he did not know whether or

when Nabil and Sawsan completed their marriage process. This affidavit strongly

suggests that the “certificate” referenced in the Embassy letters is nothing more than the

filed copy of the marriage contract to which the Sharia agent refers in his affidavit, as

opposed to some certificate of a completed marriage.9 As noted above, uncontested

record evidence indicates that the completion of the marriage contract is only one step

in the marriage process, and its filing does not complete the steps necessary for a Muslim

marriage. Because the Embassy letters, when viewed against the other evidence in the

record, show only that the marriage contract was filed, the Embassy letters on their own

8

See infra at 17-18.

9

Indeed, the Hassans both testified that this third step of the marriage process had taken place on

this date.

No. 09-3243 Hassan v. Holder Page 16

do not amount to substantial evidence supporting the Board’s conclusion that the

government met its burden of proving by clear and convincing evidence that Petitioners’

marriage was finalized in Jerusalem.

Neither of the Board’s two other justifications help to support its finding that the

government satisfied its burden of proof. After discussing the Embassy letters, the

Board proceeded to the absence of the marriage contract in the record. According to the

Board, the contract could have contradicted the government’s claim that the marriage

process was completed on February 24, 1995. The Board stated that Petitioners had

access to the marriage contract, and that their failure to submit the contract was never

explained. In other words, the Board seemed to negatively infer the absence of the

marriage contract against Petitioners. But such an approach improperly shifts the burden

of proof to Petitioners. If anything, the absence of the marriage contract is an inference

against the government, the party that had the burden to prove that Petitioners were

married (and not just contracted to be married) prior to their entry into the United States.

In its opinion affirming the IJ’s findings, the Board suggests that the government could

not obtain the marriage contract due to privacy concerns. But this statement

mischaracterizes the evidence on record. In fact, the 2005 Embassy letter indicates that

the government expected to obtain a copy of the marriage “certificate” from the Sharia

court, which also apparently had a copy of it. In that letter, the Embassy explicitly states

that it would fax the “certificate” to the government lawyer assigned to Petitioners’ case

as soon as the Embassy received it. The government, however, neither submitted the

“certificate” nor explained its absence from the record. Thus, if a negative inference is

appropriate at all, it should fall on the government. Either way, the absence of the

marriage contract does not help the government meet its affirmative burden of proving

the completion of the marriage.

The Board also relies on the IJ’s finding that much of the testimony provided by

Petitioners and their other witnesses lacked credibility. Although the Board notes

several of the minor inconsistencies made by the various witnesses, these inconsistencies

are simply not relevant to the question at hand. The lack of credibility of the testimony

No. 09-3243 Hassan v. Holder Page 17

offered by Petitioners, even if assumed, does not help the government meet its burden

of proof. At best, it would hurt Petitioners’ ability to rebut the government’s case. But

the testimony and the credibility of Petitioners’ witnesses play no part in the analysis of

whether the government has met its affirmative burden of providing clear and

convincing evidence that Petitioners were married prior to their entry into the United

States. The Board’s reliance on the IJ’s credibility finding improperly shifted the burden

of proof again to Petitioners.

Since the Board cited no other evidence in support of its finding, the only

evidence that was offered by the government as affirmative support for its charge of

removability was the Embassy letters. As noted above, however, those letters did not

amount to clear and convincing evidence that Petitioners had performed all the steps

required for a marriage under Sharia law before they left for the United States. But even

if we were to accept arguendo that a reasonable jurist could conclude that the Embassy

letters alone satisfied the government’s burden here, we could not rely on them to affirm

the Board’s ruling. The Sixth Circuit has previously explained that hearsay

documents–although generally admissible in immigration proceedings if reliable and

timely provided to opposing counsel–may not form the sole basis of a removal finding.

See Alexandrov, 442 F.3d at 406-07; see also Kasa v. Gonzales, 128 F. App’x 435, 440-

41 (6th Cir. 2005). As this Court noted in Alexandrov, this rule is particularly applicable

when the hearsay document in question is a product of the State Department, because the

government should not simply be allowed to “use the prestige of the State Department

letterhead to make its case and give credibility to the letter’s contents.” Alexandrov, 442

F.3d at 405 (quoting Ezeagwuna v. Ashcroft, 325 F.3d 396, 407 (3d Cir. 2003)) (internal

quotation marks omitted).

Based on the framework set out in Alexandrov, the Embassy letters in the instant

case are problematic. Admittedly, Petitioners were provided with the Embassy letters

in a timely fashion, and Petitioners were at least arguably given the opportunity to rebut

the letters. The reliability of the letters, however, is troubling. What is particularly

problematic is that the letters lack any real degree of detail. See id. (noting that lack of

No. 09-3243 Hassan v. Holder Page 18

detail within challenged letter cuts against reliability). After reading the letters, we do

not know who provided the Embassy with the information.10 We do not know how the

files were kept or the procedure for releasing them to the Embassy. We do not know

what the Ministry of Interior contact point stated to the Embassy officials about the

“certificate”; we have no idea how the “certificate” was characterized or whether the

official even explained what the “certificate” actually said. We do not know whether the

official who talked to the Embassy was familiar with Muslim marriage customs, or knew

the difference between a marriage contract and a completed marriage.11 “There is not

much that we do know aside from the apparent conclusions of the mysterious

investigation,” id. at 407, namely, that a document is on file and that it is an official

record of Petitioners’ marriage. Finally, as noted above, the Board’s finding was based

entirely on these letters. See id. Pursuant to Alexandrov, they cannot form the sole basis

of the government’s offer of proof.

For all of the above reasons, we REVERSE the judgment of the Board with

respect to its ruling that the government met its burden of proving Petitioners were

married prior to their entry into the United States.

C. False Statement Finding

The government also charged Petitioner Nabil Hassan as removable under

8 U.S.C. § 1227(a)(3)(D). The IJ found, and the Board affirmed, that the government

met its burden of proving that charge. The relevant statutory language states the

following: “Any alien who falsely represents, or has falsely represented, himself to be

a citizen of the United States for any purpose or benefit under this chapter . . . or any

Federal or State law is deportable.” 8 U.S.C. § 1227(a)(3)(D)(i). Thus, the government

had the burden to show not only that Nabil misrepresented himself as a U.S. citizen, but

10

The letters do indicate that the Embassy was provided with information by the Israeli Ministry

of the Interior, but the letters do not indicate who at the Ministry (i.e. which employee, presumably, or

which division) provided the information.

11

As noted above, Petitioners themselves supplied evidence that the marriage contract was filed

in Jerusalem, but the uncontested evidence on record establishes that the creation of the marriage contract

does not finalize a Muslim marriage.

No. 09-3243 Hassan v. Holder Page 19

also that he did so “for any purpose or benefit” under some law. Id. The federal courts

have begun to provide examples of what qualifies as a “purpose or benefit” under section

1227(a)(3)(D). See, e.g., Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007)

(obtaining private-sector employment qualifies as “purpose or benefit”); Sowah v.

Gonzales, 196 F. App’x 576, 577 (9th Cir. 2006) (applying for U.S. passport qualifies

as “purpose or benefit”); Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005)

(obtaining entry into the United States qualifies as “purpose or benefit”). Petitioners

claim that the government failed to establish that Nabil’s submission of the SBA loan

application had any such “purpose or benefit.” We agree.

In the instant case, the government never attempted to show the “purpose or

benefit” Nabil received, and the Board does not discuss the issue in its opinion. Both the

government and the Board focus on the misrepresentation itself, highlighting that it must

have been knowingly made by Nabil. True, its finding that Nabil had knowledge of the

misrepresentation passes muster under our standard of review. But that does not change

the fact that the government simply offered no evidence of the “purpose or benefit” of

the misrepresentation, despite the fact that it is one of the necessary elements that must

be shown to establish removability under section 1227(a)(3)(D). Presumably, the

government may have assumed that the “purpose or benefit” was the obtainment of the

SBA loan. However, the government made no attempt to explain how, if at all, Nabil’s

immigration status would affect the loan application. In fact, the only evidence on

record with regard to this issue came from Petitioners and indicates that his immigration

status would have no effect on the loan.12 (AR 721, 724) (copies of Nabil’s previous

loan applications, which were granted, and on which Nabil indicated that he was not a

U.S. citizen). Admittedly, Nabil might still be removable notwithstanding the lack of

effect if his “purpose” was to affect his application (even though his immigration status

was irrelevant). There are two fatal problems with this reasoning, however. First, the

government never made this argument or presented any testimony to prove it. Second,

12

The Board here again seems to have misapplied the burden of proof. The Board highlights and

endorses the IJ’s conclusion that Nabil was not credible, thereby disregarding his contention that he did

not knowingly misrepresent himself as a U.S. citizen. But his credibility should play no part in assessing

the evidence offered by the government to meet its burden of proof here.

No. 09-3243 Hassan v. Holder Page 20

the only evidence on record leads to the opposite conclusion. For Nabil had actually

applied for and received multiple similar SBA loans as a resident alien prior to the

applications in question. And in those previous applications, he (properly) asserted that

he was not a U.S. citizen. In other words, Nabil’s past conduct suggests that he did not

subjectively believe that his immigration status affected his application. Thus, the record

compels the conclusion that the government failed to show that Nabil misrepresented

himself for “any purpose or benefit” under state or federal law. Accordingly, we must

also REVERSE the Board’s finding that Nabil was removable under 8 U.S.C.

§ 1227(a)(3)(D).

D. Conclusion

The Board (and the IJ) failed to provide a legally sufficient basis for finding the

Hassans removable. Indeed, the record before the agency at the time the removability

rulings were made did not contain evidence to support those rulings. “Had the BIA

properly applied the facts before it to the law, it would have held that the Petitioner[s

were] not deportable. The proper course in the circumstances before us is to reverse

without a remand for further consideration.” Pickering v. Gonzales, 465 F.3d 263, 271

(6th Cir. 2006) (internal citation omitted) (reversing and remanding with instructions to

end removal proceedings in analogous situation). Accordingly, we will do so in this case

as well.

III. Waivers/Motion to Remand

Petitioners also appeal the Board’s ruling denying their motion to remand the

record in order to apply for a waiver of inadmissibility. The Board’s decision and

Petitioners’ appeal with respect to these claims are moot, however, in light of our

previous rulings here. Therefore, we decline to address them now.

No. 09-3243 Hassan v. Holder Page 21

CONCLUSION

For the foregoing reasons, we AFFIRM in part and REVERSE in part the opinion

of the Board of Immigration Appeals. The petition is granted, and the case is

REMANDED to the Board of Immigration Appeals so that it may quash the removal

order and terminate the removal proceedings against Petitioners.