non-discretionary decisions are reviewable, even where they “underlie determinations that are ultimately discretionary.”
How later courts described this case
- non-discretionary decisions are reviewable, even where they “underlie determinations that are ultimately discretionary.”
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0334p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
IMAD ABDULAHAD,
-
Petitioner,
-
-
No. 08-3850
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR., Attorney General,
N
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A75 415 373.
Argued: June 16, 2009
Decided and Filed: September 15, 2009
*
Before: MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Russell R. Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy,
Michigan, for Petitioner. Jesse Lloyd Busen, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Russell R. Abrutyn,
Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for
Petitioner. Jesse Lloyd Busen, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
FRIEDMAN, Circuit Judge. The principal issue in this immigration appeal is
whether the record supports the immigration judge’s determination that the marriage of
a male non-citizen alien to a female American citizen was a sham, entered into to enable
*
The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.
1
No. 08-3850 Abdulahad v. Holder Page 2
the alien to remain in the United States. The alien also challenges various aspects of the
proceedings before the immigration judge. Based on her rulings, the immigration judge
ordered the alien removed from the United States. The Board of Immigration Appeals
upheld that decision, and we DENY the petition for review.
I
A. The petitioner Imad Abdulahad is a Syrian citizen who legally entered the
United States as a nonimmigrant student in October 1994. Before his student visa
expired, in 1997 he married Carmel McKentry, a United States citizen. Based on that
marriage, the Immigration and Naturalization Service on March 24, 1998, adjusted his
status to “conditional lawful permanent resident.” See Immigration and Naturalization
Act § 216(a)(1) [8 U.S.C. 1186a(a)(1)]. Under that statute, within two years of that
status adjustment and within 90 days of the end of that two-year period, the alien and his
spouse were required to file a petition to remove the conditions on residence. See INA
§§ 216(c)(1), (d)(2) [8 U.S.C. §§ 1186a(c)(1), (d)(2)]; 8 C.F.R. § 1216.2.
On January 31, 2000, Abdulahad and McKentry jointly filed such a petition.
Approximately two years later, however, after an immigration official indicated to her
during an interview that he knew she was not living with Abdulahad, McKentry
withdrew her joinder in the petition. She also filed two sworn statements that she had
married Abdulahad in exchange for $6,000 to help him stay in the United States, that she
and Abdulahad did not have a sexual relationship during their marriage, that she stayed
at Abdulahad’s house only occasionally, “in case INS showed up,” and that her
“marriage to Imad Abdulahad was a sham and entered into for the sole purpose of
helping him stay in the United States.” She stated they had lived together for seven
months.
In April 2002, the Immigration and Naturalization Service notified Abdulahad
that because the joint petition was withdrawn, his conditional status was terminated,
effective March 24, 2000, and that it proposed to remove him. While the removal
proceeding was pending, Abdulahad filed a new Petition to Remove the Conditions on
No. 08-3850 Abdulahad v. Holder Page 3
Residence, in which he requested a waiver of the joint filing requirement on the ground
that his removal would cause extreme hardship and because he had married McKentry
in good faith. He contends this filing extended his status as a conditional lawful
permanent resident. The Department of Homeland Security denied this petition on
February 11, 2005.
In the removal proceedings, Abdulahad denied all charges and again requested
a waiver of the joint petition requirements of § 216(c)(1), on the same grounds he
previously had asserted: extreme hardship and that he married McKentry in good faith.
At the hearing before the immigration judge in the removal proceedings,
McKentry and Abdulahad presented conflicting evidence about their marriage.
McKentry repeated the sworn statements she previously had made. She testified that,
in return for marrying Abdulahad she was to be paid $6,000 and was to participate in
immigration proceedings. The marriage never was consumated and she and Abdulahad
did not live together as husband and wife. They never intended to establish a life
together and she never behaved as if she was his wife, in public or with friends and
family. They had a joint checking account, which she occasionally used. Over the
course of the marriage, Abdulahad gave her approximately four thousand dollars.
Before each of the two interviews with immigration officials she attended,
McKentry and Abdulahad rehearsed what they were going to say, and they were not
living together at the time of either interview. When she supposedly was living with
Abdulahad in East Lansing, she instead was living in housing on the campus of
Michigan State University. She signed various apartment leases to create the appearance
that she and Abdulahad were living together. Photographs of the two of them together
that Abdulahad presented were taken to submit to immigration authorities as evidence
that the two had established a life together.
McKentry testified that she had given inaccurate, sworn statements to the
government at an interview with immigration officials, as well as in numerous
documents submitted in support of Abdulahad’s immigration efforts. She also testified
No. 08-3850 Abdulahad v. Holder Page 4
that on February 22, 2002, she signed a statement that her marriage was a sham and
entered into solely to help Abdulahad stay in the United States.
While she was married to Abdulahad, she had a child by another man, of which
Abdulahad was not aware until after it was born.
Abdulahad gave a completely different version of their relationship. He testified
that the two were married in a civil wedding ceremony on August 5, 1997. No family
members or friends attended or were even aware that a wedding would occur. After the
wedding, he and McKentry began living together in East Lansing in a one-bedroom
apartment. They also opened a joint checking account at Citizens bank. She co-signed
his application for a student loan.
Abdulahad stated that his marriage with McKentry broke down after her younger
sister died in 1998. He said that after that McKentry became a different person. She
started partying and staying out late and eventually became a stripper at a local night
club. He suspected her of drug use.
Abdulahad presented documentary evidence to support his claims, including
apartment leases and joint bank account statements.
He admitted that his prior sworn statement to immigration officials that he and
McKentry had not been separated for more than a day was false and gave multiple
explanations for it. He was not truthful when he said they were living together in East
Lansing at the time of the interview and explained the statement on the ground that he
believed she “would always come back.”
B. In a lengthy oral opinion that discussed the evidence in detail, the
immigration judge found that “this marriage was entered into solely for the purpose of
the respondent obtaining his residency status, and this marriage was not entered into in
good faith.” She ordered him removed.
The immigration judge found Abdulahad “not to be credible and that his ex-
spouse testimony was forthright and credible.” The administrative judge “note[d]” “that
No. 08-3850 Abdulahad v. Holder Page 5
on direct examination,” Abdulahad “was able to recall the dates, and the exact address
where the respondent and his ex-spouse reportedly lived more then a decade ago” “with
virtual perfect accuracy.” The immigration judge then “f[ou]nd” that Abdulahad
was essentially scripted during much of his testimony. It was apparent
from this record that when the respondent was asked a question that was
outside the confines of the dates of the marriage when he and his former
spouse saw each other and the exact address of he and his former spouse
resided, that he all of a sudden had memory problems and would often
state that he couldn’t recall certain things.
On the other hand, the immigration judge:
found that the testimony of the respondent’s ex-spouse to be forthright
that she did not have an animosity towards the respondent and that she
was very honest in her admissions to the court as to her untruthfulness to
the Government during the interview process and why she was untruthful
to the Government.
The court further notes that the differences between the
respondent and his ex-spouse’s testimony in terms of the substance of
nature of their relationship simply cannot be ignored.
The immigration judge discussed at length the various contradictions and
inconsistencies between the testimony of Abdulahad and McKentry and within
Abdulahad’s own testimony and between that testimony and his prior sworn statements
made to immigration officials.
C. The Board of Immigration Appeals (“Board”) dismissed Abdulahad’s appeal.
It “adopt[ed] and affirm[ed] the decision of the Immigration Judge” “to the extent
challenged on appeal.” It also wrote an opinion explaining the reasons for its decision.
The Board rejected Abdulahad’s argument that “the Immigration Judge erred in
finding his former ‘spouse’ more credible than him.” The Board also considered and
rejected Abdulahad’s other challenges to the immigration judge’s decision, discussed in
Part III below. At the end of its opinion, the Board stated: “In view of the above, we
find no reason to disturb the Immigration Judge’s decision.” (Footnote omitted)
Where, as here, the Board adopts and affirms the immigration judge’s opinion,
but writes its own opinion explaining the reasons for its decision, we review both
No. 08-3850 Abdulahad v. Holder Page 6
opinions. Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008) (citing Gilaj v.
Gonzales, 408 F.3d 275, 283 (6th Cir. 2005)).
II
A. We uphold an immigration judge’s credibility determinations if they are
“supported by reasonable, substantial and probative evidence on the record considered
as a whole.” Shan Sheng Zhao v. Mukasey, 569 F.3d 238, 247 (6th Cir. 2009). The
immigration judge is required to give specific reasons for any adverse credibility
determination. Koulibaly v. Mukasey, 541 F.3d 613, 620 (6th Cir. 2008). Where, as
here, the trial tribunal’s credibility determination rests significantly on its weighing of
the witnesses’ demeanor, “we will not overrule that determination lightly.” Gjolaj v.
Keisler, 252 Fed.Appx. 64, 68 (6th Cir. 2007).
In this case the immigration judge had a unique opportunity to judge the
demeanor of Abdulahad and McKentry while they testified - - an opportunity we do not
have on the cold transcript of the record. Her determination that McKentry was credible
and Abdulahad not credible rested in substantial part on her evaluation of their
respective demeanor, and is supported by substantial evidence.
The immigration judge fully, adequately, and convincingly explained the reasons
for her conclusion. As she stated, Abdulahad’s testimony appeared “scripted” because
he was able to recall the dates and addresses where he and McKentry allegedly lived
together “with virtual perfect accuracy,” but when questioned on other facts “he all of
a sudden had memory problems and would often state that he couldn’t recall certain
things.” The immigration judge also pointed out inconsistencies in Abdulahad’s
testimony and his admission that he had made false sworn statements during interviews
with immigration officials. In contrast, the immigration judge found that McKentry’s
testimony was “forthright,” that she had no “animosity toward” Abdulahad and was
“honest in her admissions . . . as to her untruthfulness to the Government during the
interview process.”
No. 08-3850 Abdulahad v. Holder Page 7
In sum, like the Board, “we find no reason to disturb” the immigration judge’s
finding that Abdulahad’s marriage was a sham, entered into in an attempt to allow him
to remain in the United States.
B. Our affirmance of the ruling that the marriage was a sham also requires
rejection of Abdulahad’s contention that §237(a)(1)(A) of the Immigration and
Naturalization Act, 8 U.S.C. §1227(a)(1)(A), pursuant to which the immigration judge
ordered Abdulahad removed, did not authorize that action. That section provides: “Any
alien who at the time of entry or adjustment of status was within one or more of the
classes of aliens inadmissible by the law existing at such time is deportable.” One of the
classes of inadmissible aliens is described in section 212(a)(6)(C)(i) of that Act, 8 U.S.C.
§1182(a)(6)(C)(i) ,which states:
Any alien who, by fraud or willfully misrepresenting a material fact,
seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit
provided under this Act is inadmissible.
The immigration judge found that Abdulahad also was removable under
§ 237(a)(1)(G) of that Act, 8 U.S.C. § 1227(a)(1)(G), captioned “Marriage fraud,” which
makes deportable an alien for “having procured a visa or other documentation by fraud,”
if “it appears to the satisfaction of the Attorney General that the alien has failed or
refused to fulfill the alien’s marital agreement which in the opinion of the Attorney
General was made for the purpose of procuring the alien’s admission as an immigrant.”
We review the immigration judge’s ruling on those issues “to determine whether
substantial evidence supports the factual findings underlying the IJ's decision regarding
the nature of the marriage.” Fang Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir. 2008).
Under this standard, “a factual determination by the Board that an alien’s marriage was
entered into for the purpose of gaining entry into the United States is conclusive if it is
supported by reasonable, substantial, and probative evidence in the record considered
as a whole.” Id. There is no reason why this standard should not also apply in reviewing
the immigration judge’s ruling that the fraudulent marriage was entered into for the
No. 08-3850 Abdulahad v. Holder Page 8
purpose of remaining in this country after the alien’s initial period of lawful residence
had ended.
Based on the evidence previously discussed, we uphold the immigration judge’s
ruling that Abdulahad is removable under § 237(a)(1), as supported by substantial
evidence.
III
Abdulahad’s other challenges of the decision of the immigration tribunals need
not detain us long.
A. Abdulahad contends that the immigration judge was biased against him
because she previously worked at the Immigration and Naturalization Service regional
office as a trial attorney and Chief Counsel. He does not contend, or point to any
evidence that she participated in the investigation or prosecution of the charges against
him. Her prior government service without more does not establish bias. As the Seventh
Circuit stated in Petrov v. Gonzales, 464 F.3d 800, 803 (2006), in rejecting the
contention that an immigration judge’s prior service as chief counsel in the immigration
service office that handled a removal case established bias against the removed alien, the
alien’s “position has neither factual nor legal support.” 464 F.3d at 803. As that court
pointed out, “[n]othing in the record implies” that the administrative judge “had any
involvement” in the decision “to commence removal proceedings.” Id.
Similarly without substance is Abdulahad’s contention that the administrative
judge’s bias was shown by her questioning of witnesses. The immigration laws
explicitly authorize an immigration judge to “interrogate, examine, and cross-examine
the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1). Rather than showing bias, the
immigration judge’s questioning of witnesses appeared designed to aid in fully
developing the factual record in the case. There is no showing that her questioning of
witnesses favored the government over Abdulahad.
No. 08-3850 Abdulahad v. Holder Page 9
B. Abdulahad next contends that he was denied due process because the hearing
transcript contains a number of “indiscernible” entries instead of the text of McKentry’s
actual testimony.
For his due process claim to succeed, Abdulahad must show that the alleged
defect in the record transcript prejudiced him. Gishta v. Gonzales, 404 F.3d 972, 979
(6th Cir. 2009). We agree with the Board that “the record of proceedings [is] sufficient
for our review on appeal. In addition, the respondent has not identified what material
facts, if any, were omitted from the record and has, therefore, failed to show that such
indiscernible testimony caused him prejudice.”
C. Finally, Abduluhad challenges the Board’s denial of an “extreme hardship”
waiver of the joint filing requirement for the condition-removing petition. Under
§ 216(c)(4)(A) of the Immigration and Naturalization Act, 8 U.S.C. § 1186a(c)(4)(A),
the Attorney General in his discretion may remove the conditions on permanent resident
status for an alien who is unable to comply with the joint-filing requirements, if the alien
demonstrates that “extreme hardship would result if such alien is removed.” Abdulahad
contends that the Board used an erroneous time frame in making its extreme hardship
analysis.
According to Abdulahad, the proper date for terminating his conditional status
was April 25, 2007 (the date of the immigration judge’s decision), not March 24, 2000,
as the immigration judge determined. The latter determination correctly reflected
section 216(c)(2)(A) of the Immigration & Naturalization Act, 8 U.S.C. § 1186 a( c
)(2)(A), which requires the Attorney General to “terminate the permanent resident status
of the alien as of the second anniversary of the alien’s lawful admission for permanent
residence.” March 24, 2000 was the second anniversary of Abdulahad’s obtaining his
conditional resident status on March 24, 1998.
This court has jurisdiction to determine whether the proper time frame was used.
See Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004) (non-discretionary
decisions are reviewable, even where they “underlie determinations that are ultimately
discretionary.”). The Board addressed Abduluhad’s argument that the wrong time period
No. 08-3850 Abdulahad v. Holder Page 10
was used, and stated that “even if we accept [his argument] that his conditional
permanent resident status was not terminated on March 24, 2000 we would still find that
the hardships described by the respondent on appeal… do not rise to the level of extreme
hardship.” This latter determination is within the discretion of the Attorney General and
we cannot review its merits. See Valenzuela-Alcantar v. INS, 309 F.3d 946, 949-50 (6th
Cir. 2002).
CONCLUSION
The petition for review is DENIED.