Anouar Darif v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1050

ANOUAR DARIF,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A048-276-498

ARGUED SEPTEMBER 28, 2012 — DECIDED JANUARY 2, 2014

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Anouar Darif, a native and citizen of

Morocco, married Dianna Kirklin, a citizen of the United

States, and by virtue of the marriage was admitted into the

United States as a conditional permanent resident in 2001. But

the marriage was a sham. Darif was convicted of marriage

2 No. 12-1050

fraud and related charges, and the Department of Homeland

Security (“DHS”) initiated proceedings to remove him. An

immigration judge (“IJ”) found Darif removable and rejected

all of his arguments for relief. The Board of Immigration

Appeals (“BIA” or “Board”) initially ordered further proceed-

ings, but when the case returned to the BIA after remand, the

Board likewise rejected all of Darif’s claims for relief from

removal.

In his petition for review, Darif presses only his argument

for an extreme-hardship waiver pursuant to 8 U.S.C.

§ 1186a(c)(4). He claims that the IJ was biased and otherwise

denied him a full and fair hearing in violation of his right to

due process. But regardless of the alleged flaws in the proceed-

ings before the IJ, the BIA independently reviewed Darif’s

request for a hardship waiver and exercised its discretion to

deny it; we have no jurisdiction to review that discretionary

determination. See 18 U.S.C. § 1252(a)(2)(B)(ii). Although we

may review constitutional claims and questions of law, see id.,

Darif’s due-process argument cannot succeed because an alien

has no protected liberty interest in discretionary immigration

relief. Even if the due-process claim is recast as a challenge to

the legal sufficiency of Darif’s hearing under the governing

statutes and regulations, Darif was not prejudiced because the

BIA gave his hardship claim plenary and independent consid-

eration and denied it in an exercise of its discretion. Accord-

ingly, we deny the petition for review.

No. 12-1050 3

I. Background

Darif and Kirklin married in December 2000 in Morocco.

Later that month Kirklin submitted an I-130 Petition for Alien

Relative, the petition that must be filed to enable an alien

spouse to obtain lawful permanent residence status. The

approval of Kirklin’s petition allowed Darif to obtain the

necessary visa to enter the United States, which he did in

December 2001.

Because alien spouses married to United States citizens are

admitted for permanent residence on a conditional basis, see

8 U.S.C. § 1186a(a)(1), Darif’s status in the United States was as

a conditional permanent resident. To remove that conditional

status, Darif and Kirklin had to comply with a number of

requirements prescribed by statute, including jointly filing an

I-751 Petition to Remove Conditions on Residence and under-

going a personal interview. See id. § 1186a(c)-(d); Hammad v.

Holder, 603 F.3d 536, 538 (9th Cir. 2010). Darif and Kirklin

initiated the process for removing his conditional status by

filing the necessary I-751 petition in September 2003.

At some point evidence emerged that Darif had paid

Kirklin $3,000 for the marriage, exposing it as a sham. In 2004

Darif was charged with marriage fraud in violation of 8 U.S.C.

§ 1325(c), conspiracy to commit marriage fraud in violation of

18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C.

§ 1512(b)(1). A jury convicted Darif on all three counts the

following year, and we affirmed his convictions on appeal. See

United States v. Darif, 446 F.3d 701 (7th Cir. 2006).

An alien spouse’s visa may be revoked if it was obtained

through marriage fraud, see 8 U.S.C. § 1155; El-Khader v.

4 No. 12-1050

Monica, 366 F.3d 562, 568 (7th Cir. 2004), and marriage fraud is

a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G).

So in December 2005 the DHS terminated Darif’s conditional

permanent resident status, see id. § 1186a(b)(1), and initiated

removal proceedings the next month. The grounds for removal

were threefold: (1) Darif’s conditional residency status had

been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had commit-

ted marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was

inadmissible at the time of entry, see id. § 1227(a)(1)(A).

Notwithstanding his convictions, Darif continued to deny that

his marriage was fraudulent.

Darif and Kirklin filed a number of petitions in an effort to

stave off Darif’s removal. In January 2006 Kirklin filed a second

I-130 Petition for Alien Relative seeking to establish that the

marriage was really a good-faith marriage despite the jury’s

verdict. In February 2006 Darif and Kirklin jointly filed another

I-751 petition based on their continued marriage; they also

asserted that Darif’s removal would cause extreme hardship.

Finally, Darif filed his own I-751 petition relying solely on

extreme hardship.

Only the request for an extreme-hardship waiver is at issue

here, so we pause for a moment to sketch how this form of

relief works. As we have noted, to remove the conditional

status of permanent residence, an alien and his citizen spouse

must jointly file a timely I-751 petition and submit to a per-

sonal interview. See id. § 1186a(c)(1). The petition must state,

among other things, that the alien spouse and citizen spouse

are married and that they did not marry for the purpose of

gaining the alien spouse’s admission as an immigrant. Id.

No. 12-1050 5

§ 1186a(d)(1). The extreme-hardship waiver comes into play

when the alien spouse cannot comply with the petition and

interview requirements. See id. § 1186a(c)(4)(A). In that situa-

tion “[t]he Secretary of Homeland Security, in the Secretary’s

discretion, may remove the conditional basis of the permanent

resident status … if the alien demonstrates that … extreme

hardship would result if such alien is removed.” Id. A favor-

able determination of extreme hardship would have counter-

acted at least one basis for Darif’s removal—that his condi-

tional permanent residence status had been terminated. See id.

§ 1227(a)(1)(D)(ii).

Darif’s removal hearing was held on May 4, 2006, the day

after we issued our opinion affirming Darif’s convictions. Darif

and Kirklin appeared without an attorney. Apparently no one

was aware of our decision the day before because the IJ

continued the hearing to wait for the results of Darif’s criminal

appeal. Darif maintains, however, that the judge made a

number of off-the-record comments at this hearing suggesting

that he was biased. Because the record reflects none of these

comments, we take Darif’s version of events from his affidavit

and accept it for the sake of argument. Darif states that at the

beginning of the hearing, the IJ told Kirklin that she could let

go of Darif’s arm because he was “not going anywhere … yet.”

During the hearing itself, the judge referred to Darif’s convic-

tions and said, “[Y]ou had better hope you win that appeal

because if you don’t, you’re done, it’s over, you are out of here;

there are no more continuances, no more chances.” The judge

later referred again to Darif’s criminal case and told him that

if he lost in the Seventh Circuit, he would lose in immigration

court. Finally, when Darif asked the judge whether he should

6 No. 12-1050

notify the court when his appeal was decided, the judge

responded, “[O]h yeah, you can bring it in, we can get this over

with real quick, the sooner the better.”

The IJ reconvened the hearing on June 1, 2006, having

learned by then of our decision affirming Darif’s convictions.

This time Darif appeared with counsel, so the judge continued

the hearing to June 30 for purposes of “pleading and any and

all forms of … relief.” The judge explained to Darif that on that

date his counsel would tell the court “whether he wants to

apply for a benefit or a defense.” Whether these statements

meant that Darif needed to be prepared to present his evidence

on all his claims for relief on June 30 would later become the

subject of dispute.

At the June 30 hearing, the IJ determined that Darif was

removable on all three grounds advanced by the government,

essentially relying on Darif’s convictions for marriage fraud.

Darif’s attorney then advised the judge that Darif was pursu-

ing the following forms of relief: a continuance to allow

adjudication of the recently filed I-130 and I-751 petitions; an

extreme-hardship waiver under § 1186a(c)(4); a fraud waiver

under 8 U.S.C. § 1227(a)(1)(H); withholding of removal under

the Immigration and Nationality Act (“INA”); and protection

under the Convention Against Torture (“CAT”).

The IJ first addressed Darif’s request for a continuance and

denied it for lack of good cause. The judge noted that Darif had

not informed the immigration authorities that his convictions

had been affirmed and also that Darif’s convictions precluded

him from establishing a good-faith marriage, which would

doom the I-130 and I-751 petitions in any event. For good

No. 12-1050 7

measure the judge added that even if the convictions did not

have preclusive effect, he would deny the continuance in an

exercise of his discretion.

The judge then addressed the request for an extreme-

hardship waiver, expressing doubt that Darif was statutorily

eligible because his conviction for marriage fraud meant that

he never should have been conditionally admitted in the first

place. Darif’s attorney took the position that the statute

allowed for an extreme-hardship waiver despite the conviction.

The judge was clearly skeptical and demanded legal authority

in support of this position. Darif’s attorney responded that he

was simply relying on his reading of the statute. The judge

rejected the argument and held that Darif was statutorily

ineligible for a hardship waiver as a consequence of his

conviction of marriage fraud. The judge added that he would

deny the waiver as a matter of discretion.

The judge moved next to Darif’s request for a fraud waiver

under § 1227(a)(1)(H), quickly denying this form of relief

because Darif did not have a qualifying spouse based on his

fraudulent marriage and also because he was not otherwise

admissible. That left only Darif’s requests for withholding of

removal under the INA and protection under the CAT. The

judge instructed Darif to call his first witness. Darif’s attorney

was caught off guard and said that he was not prepared to

present evidence. At this point a squabble ensued about

whether at the June 1 hearing the judge had told Darif and his

attorney to be prepared to introduce evidence on June 30.

The judge refused to continue the matter and insisted that

Darif’s attorney move forward with evidence on the remaining

8 No. 12-1050

forms of relief that Darif was requesting. Darif’s attorney

declined, noting again that he did not have notice and was

unprepared to move forward on the withholding and CAT

claims. The judge construed Darif’s failure to present evidence

as an abandonment of the claims and denied them. On

September 1, 2006, the IJ issued a written order explaining his

findings.

Before the written order issued, however, Darif moved for

recusal, or in the alternative, rehearing. The motion was based

primarily on the judge’s off-the-record comments at the May

hearing. But Darif also maintained that recusal was necessary

based on the judge’s handling of proceedings involving Ouaffa

Melliani, a coconspirator in Darif’s marriage-fraud conspiracy.

Finally, Darif contended that the IJ had denied him a full and

fair opportunity to present evidence by insisting that he move

forward at the June 30 hearing when he was unprepared to do

so. The judge denied the motion in his September 1 written

order denying relief from removal.

Darif appealed to the BIA and won a partial remand. The

BIA found no basis for the IJ’s recusal and held that Darif was

not eligible for a fraud waiver. But the BIA remanded for

reconsideration of the claims for withholding of removal and

protection under the CAT, concluding that it was reasonable

for Darif’s counsel to assume that the IJ would not demand

evidence on these forms of relief at the June 30 hearing. In a

footnote the BIA also acknowledged that the IJ appeared to

have erred in imposing a good-faith marriage requirement for

eligibility for extreme-hardship waivers under § 1186a(c)(4),

No. 12-1050 9

but suggested that the error was inconsequential because any

application for such a waiver would be futile.

The IJ scheduled a new hearing in July 2008 but continued

it twice to allow the Citizenship and Immigration Services

(“USCIS”) to adjudicate the I-751 petition that Darif had filed

seeking an extreme-hardship waiver. In early December 2008,

the USCIS denied the extreme-hardship waiver because Darif

was statutorily ineligible based on his technically still valid (if

fraudulent) marriage to Kirklin.

When Darif’s hearing reconvened in March 2009, the IJ

agreed with the USCIS’s decision, reasoning that the statute

permitted extreme-hardship waivers only when an applicant

could not file a joint petition with his spouse and submit to a

personal interview. The judge noted that because Darif was

technically still married to Kirklin, he was capable of comply-

ing with the petition and interview requirements of

§ 1186a(c)(1) and therefore resort to the extreme-hardship

waiver was statutorily impermissible.

Darif’s attorney took issue with that reading of the statute,

and the proceedings again became contentious. The judge

demanded to know whether any legal authority supported

Darif’s counsel’s interpretation and warned him that a frivo-

lous application was sanctionable. Darif’s attorney replied that

he did not have any legal authority but was again relying on

his understanding of the text of the statute. The judge re-

sponded by reading the sanctions regulations to Darif’s

attorney.

The implied threat of sanctions prompted counsel to ask the

judge to relieve him as Darif’s attorney. A drawn-out exchange

10 No. 12-1050

then ensued about whether the judge should allow Darif’s

attorney to withdraw. The judge ultimately refused, noting

that the attorney knew Darif’s case and that withdrawal would

disadvantage his client. This got things back on track, and

counsel proceeded to introduce evidence regarding Darif’s

requests for withholding of removal and CAT protection.

The IJ denied Darif’s applications for withholding and

protection under the CAT. In his written decision, the judge

also explained his conclusion that Darif was statutorily

ineligible for an extreme-hardship waiver because he was still

married and therefore could file a joint I-751 petition. Finally,

the judge urged the BIA to consider imposing sanctions against

Darif’s attorney for advancing a frivolous argument about the

statutory availability of an extreme-hardship waiver.

In the meantime, Darif and Kirklin were divorced. Based on

this new development and before appealing the IJ’s decision to

the BIA, Darif moved to reopen. He was careful not to concede

the earlier point that his then-still-intact (if fraudulent) mar-

riage made him statutorily ineligible for a hardship waiver

under § 1186a(c)(4). But he argued that his recent divorce

removed that impediment to relief. He also submitted an

affidavit and other documents to support his substantive claim

that multiple hardships would flow from his removal:

(1) removal would sever family ties by effectively preventing

him from seeing his adopted son; (2) he had resided in the

United States for eight years; (3) he suffered from chronic back

problems; (4) the Moroccan government may presume him to

be a terrorist and torture him; (5) the King of Morocco may

persecute him for deserting from his government job; (6) he

No. 12-1050 11

owned his own culinary business in the United States; (7) he

had no other means of adjusting his immigration status; (8) he

had assisted local authorities in a criminal prosecution; (9) he

had no other negative immigration history and was law

abiding while in the United States; and (10) he was gainfully

employed and supported his family.

With the motion to reopen pending, Darif again appealed

to the BIA. The BIA treated the motion to reopen as a motion

to remand and considered it with his appeal. In a decision

issued in December 2011, the BIA dismissed the appeal and

denied the motion, rejecting Darif’s claims for withholding of

removal and protection under the CAT because he had not

established a likelihood that he would be persecuted upon his

removal to Morocco. The BIA also rejected Darif’s request for

an extreme-hardship waiver, holding that his conviction for

marriage fraud outweighed his claimed hardships. Alterna-

tively, the BIA determined that Darif’s proffer was insufficient

to show that any of the claimed hardships qualified as extreme.

Finally, the BIA declined to make a sanctions determination,

noting that if the IJ was concerned about counsel’s conduct, he

should have filed a complaint with the disciplinary counsel for

the Executive Office for Immigration Review.

Darif petitioned this court for review.

II. Discussion

Darif challenges only the denial of an extreme-hardship

waiver under § 1186a(c)(4). The scope of our review is limited.

Where, as here, the BIA issues its own opinion rather than

12 No. 12-1050

adopting or supplementing the IJ’s opinion, we review only the

BIA’s opinion. See Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir.

2010). As relevant here, the BIA did not adopt the IJ’s analysis

of the extreme-hardship waiver but instead exercised its own

plenary review and rejected the claim based on different

reasoning.

More fundamentally, Congress has strictly limited our

jurisdiction to review challenges like Darif’s. We generally lack

jurisdiction to review decisions committed to the immigration

agency’s discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii). Extreme-

hardship waivers are a discretionary form of relief, see id.

§ 1186a(c)(4), so we lack jurisdiction to review the substance of

the BIA’s decision,1 see Johns v. Holder, 678 F.3d 404, 406 (6th

Cir. 2012); Iliev v. Holder, 613 F.3d 1019, 1023 (10th Cir. 2010).

We retain jurisdiction to review constitutional claims and

issues of law, see § 1252(a)(2)(D), and Darif has organized his

petition for review around an argument that he was denied

due process because the IJ was biased and interfered with his

ability to fully and fairly present his case.

1

The N inth Circuit has taken the position that federal courts retain

jurisdiction to review credibility determinations made by the agency when

determining whether a petitioner is eligible for an extreme-hardship

waiver. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005).

This approach, however, has come under sharp criticism for its reliance on

legislative history and its irreconcilability with the clear statutory text. See

Iliev v. Holder, 613 F.3d 1019, 1024 (10th Cir. 2010); Contreras-Salinas v.

Holder, 585 F.3d 710, 714 n.4 (2d Cir. 2009). Darif does not challenge an

adverse credibility determination or the weight that the agency gave his

evidence supporting his extreme-hardship petition, so we have no occasion

to decide this legal point today.

No. 12-1050 13

It is well established that aliens generally have due-process

rights in proceedings to determine their removability. See Reno

v. Flores, 507 U.S. 292, 306 (1993); Podio v. INS, 153 F.3d 506, 509

(7th Cir. 1998); Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 212 (1953); Yamataya v. Fisher (The Japanese

Immigrant Case), 189 U.S. 86, 101 (1903); Batanic v. INS, 12 F.3d

662, 666 (7th Cir. 1993). But this right does not extend to

discretionary forms of relief from removal. See, e.g., Delgado v.

Holder, 674 F.3d 759, 765 (7th Cir. 2012); Khan v. Mukasey,

517 F.3d 513, 518 (7th Cir. 2008); Hamdan v. Gonzales, 425 F.3d

1051, 1061 (7th Cir. 2005). We have repeatedly held that the

opportunity for discretionary relief from removal is not a

protected liberty interest because aliens do not have a legiti-

mate claim of entitlement to it. See, e.g., Boadi v. Holder, 706 F.3d

854, 858 n.3 (7th Cir. 2013); Duron-Ortiz v. Holder, 698 F.3d 523,

529 (7th Cir. 2012); Delgado, 674 F.3d at 765; Portillo-Rendon v.

Holder, 662 F.3d 815, 817 (7th Cir. 2011); Hamdan, 425 F.3d at

1061. Rather, discretionary relief from removal is akin to “an

‘act of grace.’ ” Appiah v. U.S. INS, 202 F.3d 704, 709 (4th Cir.

2000) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996)).

Darif’s due-process argument focuses exclusively on the

denial of his request for an extreme-hardship waiver, a

discretionary form of immigration relief. See § 1186a(c)(4)(A).

So even if Darif was statutorily eligible for a hardship waiver,

the decision whether to grant one remained entirely discretion-

ary. And indeed, the BIA denied a waiver in its discretion.

Because Darif has no legitimate claim of entitlement to an

extreme-hardship waiver under § 1186a(c)(4), his due-process

argument necessarily fails.

14 No. 12-1050

In his reply brief, Darif recasts the due-process claim as an

argument about the legal sufficiency of his hearing before the

IJ under the applicable statutes and regulations. We have

sometimes permitted this kind of recharacterization. See, e.g.,

Delgado, 674 F.3d at 766; Khan, 517 F.3d at 518. Although a

denial of discretionary relief may not be challenged on proce-

dural due-process grounds, removal proceedings are subject to

certain statutory and regulatory procedural requirements. See

8 U.S.C. § 1229a; 8 C.F.R. § 1240.1(c); Delgado, 674 F.3d at

765–66. These include “notice and an opportunity for a fair

hearing.” Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010).

More specifically, aliens in removal proceedings are statutorily

entitled to a “reasonable opportunity to examine the evi-

dence[,] … to present evidence[,] … and to cross-examine

witnesses presented by the Government.” 8 U.S.C.

§ 1229a(b)(4)(B). Regulations governing the immigration

judge’s authority require the judge to “receive and consider

material and relevant evidence.” 8 C.F.R. § 1240.1(c).

Accordingly, “[w]e have repeatedly reminded aliens

claiming constitutional violations that immigration proceed-

ings that meet statutory and regulatory standards comport

with due process, and, as such, aliens are better-served by

arguing instead that immigration proceedings infringed the

statutory and regulatory right to a reasonable opportunity to

present evidence.” Khan, 517 F.3d at 518. Whether the IJ failed

to follow these statutory or regulatory procedures in denying

a petition for discretionary relief is a question of law that we

review de novo. See Delgado, 674 F.3d at 766.

No. 12-1050 15

But recasting his due-process argument as a claim about the

IJ’s failure to follow the statutory and regulatory requirements

doesn’t get Darif very far, for two independent reasons. First,

arguments raised for the first time in a reply brief are waived.

See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 n.9 (7th

Cir. 2012); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010);

Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). Darif

didn’t pivot to an argument under the statutes and regulations

until his reply brief. The argument is therefore waived.

Second, even if we were to conclude that the IJ’s handling

of the hardship-waiver question during the removal proceed-

ings fell short of the requirements in the governing statutes

and regulations, Darif must establish prejudice before we

would vacate the agency’s decision. See Khan, 517 F.3d at 518;

Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007).

And there was no prejudice here. Whatever shortcomings there

may have been in the proceedings before the IJ (and we do not

conclude that there were shortcomings), the BIA itself fully and

independently considered the evidence Darif submitted in

support of his petition for an extreme-hardship waiver under

§ 1186a(c)(4). Based on this independent and plenary review,

the BIA concluded that Darif did not deserve this form of relief

as a matter of discretion. That is, the BIA assumed without

deciding that Darif was statutorily eligible for a hardship

waiver and concluded—without relying on the IJ’s deci-

sion—that a waiver should be denied in an exercise of discre-

tion. This approach is entirely appropriate and effectively

forecloses our further review. See Alsagladi v. Gonzales, 450 F.3d

700, 701 (7th Cir. 2006) (“[W]hen an agency is entitled to deny

16 No. 12-1050

relief as an exercise of discretion, it is always unnecessary and

often inappropriate for a court to discuss the eligibility issue.”).

Notably, Darif does not argue that the IJ’s mishandling of

his case deprived the BIA of evidence it needed to evaluate the

hardship question. In short, the BIA provided Darif what he

claims the IJ did not: an unbiased, complete consideration of

his claim for an extreme-hardship waiver under § 1186a(c)(4).

Accordingly, even if the IJ failed to comply with his statutory

and regulatory duties, Darif suffered no prejudice.

The petition for review is DENIED .