Wissam Al-Saka v. Jefferson Sessions

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0205p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WISSAM IBRAHIM AL-SAKA, ┐

Petitioner, │

│

> No. 17-3951

v. │

│

│

JEFFERSON B. SESSIONS, III, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals;

No. A 047 852 874.

Decided and Filed: September 18, 2018

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

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COUNSEL

ON BRIEF: Mohamed Elsharnoby, Dearborn, Michigan, for Petitioner. Rebecca Hoffberg-

Phillips, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

SUTTON, J., delivered the opinion of the court in which BATCHELDER, J., joined, and

WHITE, J., joined in part. WHITE, J. (pg. 11), delivered a separate opinion concurring in all but

the discussion of the applicability of the Fifth Amendment due process guarantee.

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OPINION

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SUTTON, Circuit Judge. Wissam Ibrahim Al-Saka received permanent residency on the

condition that he remain married to Hanadi Hashem, a U.S. citizen, for at least two years. He ran

afoul of that condition when Michigan annulled the marriage months after he arrived here. The

immigration authorities refused to waive the condition, found that Al-Saka and Hashem did not

No. 17-3951 Al-Saka v. Sessions Page 2

marry in good faith, and determined that he should be removed. We must deny Al-Saka’s

petition to stay.

I.

A Lebanese citizen, Al-Saka married Hashem, a U.S. citizen, in Beirut in August 1999.

He entered the United States in March 2001 as a conditional permanent resident based on his

marriage to Hashem.

The marriage did not last. Just weeks after he entered the United States, the couple

signed a religious divorce. In August 2001, the Lebanese government granted a legal divorce.

Two months later, Michigan annulled the marriage at Hashem’s request after finding that “there

had been no marital cohabitation.” A.R. 665. All of this extinguished the condition that justified

Al-Saka’s permanent-residence status: the marriage to Hashem.

Al-Saka remained in this country nonetheless. In January 2003, he married another

woman in Lebanon. That February, he took steps to remove the permanent-residence condition.

Because he had divorced Hashem, he could not file a joint petition with her, as the law requires.

See 8 U.S.C. § 1186a(c)–(d). He instead asked the government to waive the requirement,

claiming that deportation would cause hardship and claiming that he married Hashem in good

faith. Id. § 1186a(c)(4)(A)–(B).

In November 2016, an immigration judge held a hearing about his request. Al-Saka

described his marriage to Hashem in Lebanon. He said that they lived together for three months

in a house his father had bought for them. Then Hashem returned to the United States. She later

traveled back to Lebanon and stayed another five or six months before returning to the United

States in January 2001. According to Al-Saka, he followed her in March 2001 after recovering

from a car accident. Al-Saka claimed Hashem met him at the airport but seemed “a little bit

cold.” A.R. 135. He said he spent the first seven months at her house in Dearborn, Michigan.

But the marriage soon fell apart. He admitted that he traveled back and forth to Lebanon over

the next several years and spent as much as eight months there during one stint.

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Two of Hashem’s relatives testified on Al-Saka’s behalf. He also submitted written

statements from various friends and family, including Hashem’s mother and aunt, as well as

photos from the wedding and medical reports documenting his ankle injury from the car

accident.

The immigration judge denied the waiver requests and held that the government could

remove him. Al-Saka’s testimony, she found, lacked credibility. Although he testified that he

lived with Hashem in Dearborn during his first seven months in the United States, the I-751 form

submitted to U.S. Citizenship and Immigration Services in 2003 said that he spent just three

weeks in Michigan before moving to Louisiana for five months. She also noted that the

Michigan annulment certificate, unlike his testimony, denied any “marital cohabitation.” A.R.

71. She found that Al-Saka and Hashem did not marry in good faith, and refused to waive the

joint-petition requirement. She rejected his hardship claim on the ground that his family

remained in Lebanon. See 8 U.S.C. § 1227(a)(1)(D)(i). Even if she had discretion to grant a

marriage-fraud waiver, she pointed out, Al-Saka did not deserve one. See 8 U.S.C.

§ 1227(a)(1)(H).

Al-Saka appealed the decision to the Board of Immigration Appeals and added one other

claim: that he received ineffective assistance of counsel. The Board affirmed.

II.

We review the Board’s decision as the final agency determination, including the parts of

the immigration judge’s decision the Board adopted. Khalili v. Holder, 557 F.3d 429, 435 (6th

Cir. 2009). Al-Saka raises three claims: (1) that the Board erred when it held that he did not

marry in good faith; (2) that the Board in the alternative should have forgiven the marriage fraud

and allowed him to stay anyway; and (3) that the Board as a last alternative should have

remanded the case to the immigration judge for a new hearing because he received ineffective

assistance of counsel at the first hearing.

Joint Petition Waiver. The government conditioned Al-Saka’s permanent residency on

his marriage to Hashem, a U.S. citizen. Someone in his position typically would need to file a

joint petition with his spouse to request a release from the condition. 8 U.S.C. § 1186a(c)(1).

No. 17-3951 Al-Saka v. Sessions Page 4

Al-Saka lost that option when he and Hashem divorced. To avoid removal for failure to meet the

condition, he asked the government to waive the joint petition requirement and to lift the

condition. The Secretary of Homeland Security, acting through the immigration authorities, may

waive the requirement and remove the condition if a petitioner demonstrates that his removal

would cause “extreme hardship” or that he entered the now-dissolved marriage in good faith. Id.

§ 1186a(c)(4)(A)–(B). To protect that discretion, Congress has divested us of jurisdiction to

review any decision that the Immigration and Nationality Act commits to the discretion of the

Attorney General or the Secretary of Homeland Security. Id. § 1252(a)(2)(B)(ii). That means

we may not second guess how the Board assessed the weight or credibility of the evidence before

coming to a decision. Johns v. Holder, 678 F.3d 404, 405–07 (6th Cir. 2012). We may review

only “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).

That limitation limits Al-Saka’s request for relief. He says the Board erred when it found

that he did not enter the marriage in good faith and denied the waiver on that ground. But he

“aims the bulk of [his] fire not at the legal standards the Board applied but at its assessment of

[his] credibility and the way it weighed the evidence.” Johns, 678 F.3d at 406. One example:

He faults the immigration authorities for discrediting his testimony after finding that part, but not

all, of it conflicted with his past statements. Another example: He faults the immigration judge

for giving little weight to the photos, affidavits, and testimonial evidence that described the

couple’s relationship in Lebanon. But both arguments aim at assessments committed to the

Secretary’s discretion and over which we lack jurisdiction. Id.

Perhaps appreciating the problem, Al-Saka pitches many of his claims as substantial-

evidence arguments, which we may consider. Id. at 407. Even then, however, we may not

second guess the Board’s credibility and weight-of-the-evidence assessments. Id. Put another

way: After accepting both assessments, we may decide whether substantial evidence supports

the decision. Id. at 408.

It does. The record supports the district court’s finding that the couple did not marry in

good faith. Al-Saka offered no evidence that the couple owned any joint assets or bank accounts.

They spent much of their time apart. Although Al-Saka said that they had intended to stay in

Lebanon to build a life together, Hashem petitioned to make him a conditional permanent

No. 17-3951 Al-Saka v. Sessions Page 5

resident within one month of the marriage. The I-751 form suggests that they did not live in the

same State for more than a few weeks after Al-Saka arrived. Hashem did not meet him at the

airport when he arrived, obtained an Islamic divorce a few weeks later, and obtained a Michigan

annulment several months after that. The evidence to which Al-Saka points—wedding photos,

affidavits, and his former relatives’ testimony—does not compel a contrary finding. Substantial

evidence, in short, supports the Board’s decision to reject the joint-petition waiver and to find

him deportable because he did not enter the marriage in good faith. See 8 U.S.C.

§§ 1186a(c)(4)(B), 1227(a)(1)(G)(i).

Al-Saka says that the immigration authorities erred by focusing on the couple’s

relationship once they arrived in the United States rather than the span of their relationship. See

In re Laureano, 19 I. & N. Dec. 1, 2–3 (B.I.A. 1983). That is not accurate. The immigration

judge considered “all admitted evidence in its entirety” and came to a decision after a “careful

review of the entire record.” A.R. 61, 72. She described the evidence regarding Al-Saka’s

relationship with Hashem in Lebanon in detail; she just did not find it convincing.

Fraud Waiver. Al-Saka asks us, alternatively, to check the Board’s decision to remove

him even if he did commit marriage fraud. The Act gives the Attorney General discretion to

waive the removal of certain aliens who meet the statutory criteria even if they “were

inadmissible at the time of admission” because they committed fraud or misrepresented their

status. 8 U.S.C. § 1227(a)(1)(H). We might decide whether the statute permits such a

discretionary waiver, but after that our authority would end, as the Attorney General’s ultimate

decision to grant or deny a waiver “embodies the kind of pure discretion, unguided by legal

standards, that Congress has expressly precluded aliens from challenging in a petition for

review.” Singh v. Gonzales, 451 F.3d 400, 411 (6th Cir. 2006) (quotations omitted); see 8

U.S.C. § 1252(a)(2)(B)(ii).

We need not reach the statutory question. The immigration judge and the Board assumed

without deciding that the Attorney General could waive removal for those who commit marriage

fraud. They then used that discretion to deny Al-Saka’s request because the factors that weighed

against a waiver outweighed those in favor of a waiver. We see no advantage to resolving the

No. 17-3951 Al-Saka v. Sessions Page 6

statutory question, as our decision would make no difference to Al-Saka either way. See INS v.

Bagamasbad, 429 U.S. 24, 25–26 (1976) (per curiam).

Ineffective Assistance of Counsel. Aliens subject to removal do not have a right to

government-provided counsel. But they may hire their own counsel, of course. 8 U.S.C.

§ 1229a(b)(4). Usually immigration attorneys are good. Sometimes they are not. The Board to

its credit offers an avenue for redress in the last situation. To be eligible, the individual must file

an affidavit explaining the errors made by his lawyer, confirm that the lawyer knows about the

claim, and state whether the individual filed a grievance with the appropriate state bar

disciplinary authority. Then the individual must show that his former attorney’s deficient

performance prejudiced him—that, but for his counsel’s deficient representation, he would have

been permitted to continue residing in the United States. In re Lozada, 19 I. & N. Dec. 637,

638–39 (B.I.A. 1988); see In re Compean, 25 I. & N. Dec. 1 (A.G. 2009) (reinstating the Lozada

framework); see also Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (explaining prejudice

standard). Although Lozada dealt with a motion to reopen, we have applied its framework when,

as in this case, the alien directly petitions the court to review a Board opinion. See Huicochea-

Gomez v. INS, 237 F.3d 696, 698–99 (6th Cir. 2001).

Al-Saka’s challenge fails. The Board correctly held that Al-Saka failed to show any

cognizable deficiency by counsel. His counsel’s choices not to subpoena his ex-wife Hashem

and her mother or to hire an expert in Islamic matrimony amount to the kinds of tactical

decisions left to counsel’s discretion and do not undermine the fairness of the proceeding.

Perhaps more notably, Al-Saka fails to show any prejudice from the decisions. He points to no

affidavit or other record evidence showing what new insights the witnesses could bring or how

those insights could have changed the outcome of his case. See Gaye v. Lynch, 788 F.3d 519,

530–31 (6th Cir. 2015). His Lozada/Compean claim thus lacks merit.

One loose end needs tying. Al-Saka suggests that, even aside from his Lozada/Compean

claim, his private lawyer’s conduct violated the Fifth Amendment. That is wrong.

Before Lozada, it is true, a few circuits raised the possibility that aliens might be able to

bring ineffective-assistance claims under the Due Process Clause’s guarantee of a fair hearing in

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civil disputes about deprivations of liberty or property (as opposed to the Sixth Amendment right

to counsel in a criminal case). See Paul v. INS, 521 F.2d 194, 197–98 (5th Cir. 1975);

Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986). But these were possibilities, not

holdings. Before Lozada, no court to our knowledge held that the Board must establish an

ineffective-assistance regime based on the Fifth Amendment. That leaves the possibility that the

Board could permit claimants to obtain relief based on ineffective assistance at an immigration

hearing through its authority to implement the immigration laws and its sound discretion in doing

so. That is what we understand the Board to be doing.

That, indeed, is what the Board sees itself as doing. The Attorney General has told the

Board that it has the discretion to craft an administrative remedy for ineffective-assistance

claims. See In re Compean, 25 I. & N. Dec. at 3. Since then, the Department of Justice has

promulgated a proposed rule to establish a modified Lozada framework in the Federal Register

“based on the Attorney General’s statutory authority and discretion” under the Immigration and

Nationality Act. Motions to Reopen Removal, Deportation, or Exclusion Proceedings Based

Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 49,556, 49,557 & n.3

(proposed July 28, 2016) (citing 8 U.S.C. §§ 1103(g)(2), 1229a).

That also is the best reading of our decisions. Yes, many of them contain references to

the Due Process Clause. But they also invoke Lozada or later decisions of the Board. See, e.g.,

Sako, 434 F.3d at 863 (noting that circuit precedent “mirror[s]” Board precedent); Denko v. INS,

351 F.3d 717, 722 n.3 (6th Cir. 2003); Hamid v. Ashcroft, 336 F.3d 465, 468 (6th Cir. 2003);

Huicochea-Gomez, 237 F.3d at 699; see also Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010)

(citing the Lozada analysis in Huicochea-Gomez). None of these published decisions establishes

a Fifth Amendment right to counsel in a removal proceeding or for that matter grants relief to a

claimant who cannot meet the Board’s ineffective-assistance requirement but can still establish a

freestanding violation of the Fifth Amendment. This reading also is consistent with the

Department of Justice’s view. Congress has granted the Attorney General authority to

implement the immigration laws fairly through the Board and the immigration judges. 8 U.S.C.

§§ 1103(g)(2), 1229a. On that basis, the Board forged a remedy for deficient legal assistance

that relies not on any due process right, but on the Board’s congressionally sanctioned power to

No. 17-3951 Al-Saka v. Sessions Page 8

administer removal proceedings. The Justice Department, notably, continues to refine that

process even while consistently noting that the Fifth Amendment does not mandate that it do so.

See, e.g., 81 Fed. Reg. at 49,557 n.3. Notably, the most recent refinement proposed by the

Attorney General for Lozada claims would strengthen these protections for immigrants by

linking the immigration-ineffectiveness standard to the criminal-ineffectiveness standard of the

Sixth Amendment under Strickland. Id. at 49,565–66 (citing Strickland v. Washington, 466 U.S.

668, 694 (1984)). Continuing references to the Fifth Amendment in reviewing Lozada claims

not only are misleading but also could potentially limit the Attorney General’s efforts to offer

greater protections above any constitutional floor.

No other approach makes sense. The Constitution does not guarantee a freestanding right

to government-provided counsel in an immigration hearing. Start with the fount from which the

right flows in the criminal context: the Sixth Amendment. All agree that it guarantees counsel

only to criminal defendants; it does not apply to aliens in civil removal proceedings. See INS v.

Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

Turn to the Fifth Amendment. It does not offer immigrants a right to effective assistance

denied to them in the one constitutional provision specifically about the right to counsel. The

Due Process Clause constrains the federal government, not private citizens. Pub. Util. Comm’n

of D.C. v. Pollak, 343 U.S. 451, 461–62 (1952). It regulates private individuals only if the

government coerces them or otherwise makes common cause with them in a joint activity. See

Thomas v. Nationwide Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018). Otherwise, an

individual’s private actions do not violate another individual’s due process rights. See S.F. Arts

& Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542–43, 547 (1987); Jackson v. Metro.

Edison Co., 419 U.S. 345, 358–59 (1974).

Unlike in criminal cases, the government has no role in appointing counsel in

immigration hearings because the Due Process Clause does not guarantee a right to government-

provided counsel in civil litigation. See Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Removal proceedings are “purely civil action[s]” designed “to provide a streamlined

determination of eligibility” and “put an end to a continuing violation of the immigration laws.”

Lopez-Mendoza, 468 U.S. at 1038–39. The Fifth Amendment simply does not guarantee the

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right to counsel or, it follows, the right to effective counsel in removal proceedings. See, e.g.,

Afanwi v. Mukasey, 526 F.3d 788, 799 (4th Cir. 2008), vacated on other grounds, 558 U.S. 801

(2009) (mem.); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); Singh v. Lynch, 803 F.3d

988, 993–94 (8th Cir. 2015); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); cf. United

States v. Villanueva-Diaz, 634 F.3d 844, 850–51 (5th Cir. 2011).

That is not to say that a private actor could never facilitate a Fifth Amendment

“fundamental fairness” violation. Immigration hearings remain government proceedings and

remain overseen by governmental actors. Aliens facing removal have a right to be heard before

an immigration court that honors their due process right to a fair hearing. See 8 U.S.C.

§ 1229a(a); Zadvydas v. Davis, 533 U.S. 678, 693–94 (2001). Congress gave immigration courts

the power and responsibility to conduct removal proceedings. See generally 8 U.S.C. § 1229a.

That includes the power and responsibility to protect the integrity of those proceedings and to

ensure that the alien receives a fundamentally fair hearing. An immigration court could violate

that bedrock guarantee if (for example) the judge knew that the interpreter could not accurately

translate the alien’s testimony and never corrected the problem. Amadou v. INS, 226 F.3d 724,

727 (6th Cir. 2000). So too, if the immigration court discovered that someone had bribed the

alien’s attorney to throw the proceeding to the government and chose not to correct the problem,

a cognizable due process claim would exist. But a court could (and should) recognize that claim

not because the privately retained counsel was deficient, but because the immigration judge, as

clear a government actor as ever there was, failed to stop a compromised attorney from infecting

the proceedings with unfairness. Such a violation arises not because the individual is a lawyer

but because his actions corrupted the proceedings, the judge knew it, and the judge didn’t do

anything about it. An immigration judge has a due process obligation to stop anyone—lawyer,

translator, or anyone else—from turning a hearing into a sham.

But poor lawyering, such as missed filing deadlines, bad litigation tactics, and the like,

does not count as a due process violation merely because it rises to the level of poor lawyering.

An alien has a right only to the opportunity to follow the proper procedures and to make his case

before the immigration authorities. What he chooses to do with that is his own business. And

his proceeding is fundamentally fair if the government gives him that opportunity. If he thinks it

No. 17-3951 Al-Saka v. Sessions Page 10

will help, he may hire counsel. But if he chooses a bad attorney, the Constitution does not give

him the right to relitigate his case any more than it gives him the right to a government-hired

attorney.

Linking the Board’s administrative remedy (Lozada and Compean) to the Fifth

Amendment by the way will not help immigrants. The Fifth Amendment requires a proceeding

to be “fundamentally unfair” before it kicks in. Dowling v. United States, 493 U.S. 342, 352–53

(1990). That is not an easy standard to meet. It may require more than the showing of prejudice

that the Board currently requires. And it assuredly requires more than the proposed

Lozada/Compean amendment that would require only that the immigrant satisfy the Strickland

standard. In trusting the federal government to administer removal proceedings, Congress did

not “limit[]” it “to the very least that the Constitution demands.” Magala, 434 F.3d at 526. It

allowed the agency to create an administrative remedy that provides greater protections than the

Fifth Amendment requires. We should respect that remedy, and leave it at that.

We affirm.

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CONCURRENCE

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HELENE N. WHITE, Circuit Judge, concurring. I join in the majority opinion1 except its

discussion of the applicability of the Fifth Amendment due process guarantee to counsel in

immigration proceedings. Because the Lozada framework satisfies any arguable constitutional

due process requirements pertaining to the effective assistance of immigration counsel, I find the

majority’s discussion unnecessary.

1Regarding the statutory question identified by the majority opinion, I observe that although this circuit has

yet to address whether the Attorney General has discretion to waive removal for those who commit marriage fraud,

the Seventh and Ninth Circuits, in Acquaah v. Sessions, 874 F.3d 1010, 1018-19 (7th Cir. 2017) and Vasquez v.

Holder, 602 F.3d 1003, 1015 (9th Cir. 2010), have held that the “relating to” and “directly resulting from” language

in 8 U.S.C. § 1227(a)(1)(H) allows the Attorney General to waive an alien’s removability on the ground that the

alien was inadmissible at the time of admission due to marriage fraud and also on the related ground that the alien’s

conditional permanent resident status was later terminated for marriage fraud. In Hussam F. v. Sessions, this court

held, in a different factual context, that § 1227(a)(1)(H) allows the Attorney General to waive removability “on a

derivative basis” for grounds that are distinct from, but related to, one of the grounds directly covered by

§ 1227(a)(1)(H), citing Vasquez. 897 F.3d 707, 726 (6th Cir. 2018).