John Asare Boadi v. Eric Holder, Jr

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2742

JOHN K. A SARE B OADI,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A078-856-812

A RGUED JANUARY 9, 2013—D ECIDED F EBRUARY 7, 2013

Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.

F LAUM, Circuit Judge. In 2001, John Asare Boadi, a

Ghanian national that remained in the United States

past his visa’s authorization, obtained conditional per-

manent resident status by marrying a U.S. citizen. Two

years later, he petitioned the Department of Homeland

Security (“DHS”) to remove the condition on his status,

but the subsequent DHS interview revealed Boadi’s

2 No. 12-2742

marriage appeared to be a ploy to obtain permanent

resident status. DHS initiated removal proceedings, and

an immigration judge eventually denied Boadi’s request

for a good-faith marriage waiver through which Boadi

could have avoided removal if he proved he entered

his marriage (which had now ended through divorce)

in good faith. Boadi now challenges the nature of that

proceeding as well as the immigration judge’s substan-

tive conclusions. For the reasons set forth below, we

deny Boadi’s petition for review.

I. Background

A. Factual Background

Boadi legally entered the United States in 2000 but

overstayed his thirty-day authorization. He subsequently

married Veronica Bonds, a U.S. citizen, in 2001. As a

result, he adjusted his status to conditional lawful perma-

nent resident in 2003 pursuant to 8 U.S.C. § 1186a(a)(1)

(“an alien spouse . . . shall be considered, at the time of

obtaining the status of an alien lawfully admitted for

permanent residence, to have obtained such status on a

conditional basis”). In 2007, Boadi and Bonds filed a joint

petition on U.S. Custom and Immigration Services form

I-751 seeking removal of the “condition” to his permanent

resident status, and they attached documentation sup-

porting the authenticity of their marriage. See 8 C.F.R.

§ 216.4(a)(5). DHS’s interview with the couple, however,

revealed a number of deficiencies in their application.

For instance, they lived apart, Boadi in Ohio and Bonds

in Illinois. In fact, DHS discovered that Boadi may have

No. 12-2742 3

lived with his ex-wife, another Ghanian national that

acquired legal status by marrying a U.S. citizen, during

his marriage to Bonds. Additionally, Bonds could

neither name Boadi’s three biological children nor the

street on which Boadi lived. They also gave conflicting

answers to the same questions regarding their respec-

tive children’s relationships, who paid the bills at

Bonds’s home, and the day Boadi arrived for his interview.

After the interview, DHS sent a letter to Boadi ex-

pressing its intent to deny the petition. Boadi failed to

respond, and DHS terminated his legal status in 2009.

DHS subsequently issued a notice to appear on three

grounds: (1) obtaining an immigration benefit by fraud

or willful misrepresentation, (2) remaining in the

United States for a period longer than permitted, and

(3) having his conditional lawful permanent resident

status terminated.

Boadi and Bonds divorced only weeks after the notice

to appear, which automatically terminates an alien’s

conditional legal status. 8 U.S.C. § 1186a(b)(1)(A)(ii). This

ground was distinct from DHS’s existing allegation of

fraud, but either way, Boadi was now removable under

8 U.S.C. § 1227(a)(1)(D)(i). Facing deportation, Boadi

requested a good-faith marriage waiver through

which the Attorney General or DHS may discretionarily

remove the conditional status (i.e., grant full permanent

resident status) to an alien who entered into a qualifying

marriage in good faith even though it was later termi-

nated. 8 U.S.C. § 1186a(c)(4)(B). DHS eventually denied

this request.

4 No. 12-2742

B. Procedural Background

Removal proceedings began, and Boadi brought coun-

sel with him to his March 2010 “master calendar” hear-

ing. Boadi conceded removability based on the termination

of his conditional lawful resident status, but he opposed

the first two grounds. He also requested a transfer to

the Cleveland Immigration Court because he still

resided in Ohio. DHS opposed this request, and the

immigration judge decided to keep the case in Chicago

to decide only the issue of removability, reasoning that

the evidence of fraud would come from the Chicago

DHS agent that interviewed Boadi and Bonds. He con-

tinued the case and stated after the next hearing he

would “transfer the case to Cleveland.”

A few weeks before Boadi’s next hearing, his counsel

withdrew, and Boadi appeared pro se on March 11, 2011.

Despite the immigration judge’s previous assurances,

he told Boadi this would be his “final” hearing, meaning

the court would decide every issue that day, not just

removability. In fact, the immigration judge incorrectly

asserted that he originally scheduled the hearing “to

complete [Boadi’s] case.” Nevertheless, the immigration

judge was willing to continue the case for twenty addi-

tional days so Boadi, who expressed a desire to obtain

new counsel, could consult an attorney. This compromise

did not satisfy DHS. Because the agent that investigated

Boadi’s marriage was present, DHS requested that the

court take her testimony. The immigration judge ac-

ceded. Boadi was permitted to cross-examine the wit-

ness, but he abandoned his attempt after one question.

No. 12-2742 5

Before adjourning, the immigration judge recognized

the difficult situation Boadi faced without counsel. He

further explained that he asked the government to

submit the I-751 application (for the good-faith marriage

waiver, not the original joint submission with Bonds),

which contained various documents, and he twice

asked Boadi whether there was any evidence he wanted

the immigration judge to consider, reminding him he

could bring additional material to the next hearing.

On March 31, Boadi had what would turn out to be

his final hearing. He again appeared pro se. The immigra-

tion judge examined Boadi, who attempted to account

for the discrepancies in the DHS investigation. He stated

he moved to Chicago in November 2001 to marry

Bonds before he started at an Ohio nursing school in

2003. He visited Bonds, who later moved to Decatur,

Illinois, on the weekends. Boadi also denied living with

his ex-wife. The confusion stemmed, Boadi testified,

from his children’s use of his first wife’s address. Boadi

said the children received letters with his name on them;

that is why it appears that he received mail there. Boadi

did admit he used his ex-wife’s address for his driver’s

license but only because he could not use the

friend’s address where he actually lived. As for the

conflicts between his and Bonds’s answers, Boadi ex-

plained Bonds forgot his children’s names because it

had been a while since she saw them. Finally, Boadi

provided letters from friends supporting the bona fides

of his marriage, but the immigration judge noted

that some of this information conflicted with Boadi’s

testimony; namely, that the friends stated Boadi and

6 No. 12-2742

Bonds were happily married during a period that Boadi

testified they were separated.

Ultimately, the immigration judge did not believe

Boadi’s account. He made an adverse credibility determi-

nation and issued an oral decision finding Boadi was

removable under 8 U.S.C. § 1227(a)(1)(D)(i) because

the government terminated his conditional status.1 The

immigration judge also found Boadi failed to meet his

burden for the good-faith marriage waiver under 8 U.S.C.

§ 1186a(c)(4)(B), his only application for relief. The immi-

gration judge found the discrepancies produced by the

DHS investigation damaging, and Boadi’s efforts to

compensate for them unpersuasive. Boadi appealed

through counsel to the Board of Immigration Appeals,

raising the same claims he now raises to this Court

and also challenging the immigration judge’s decision as

clearly erroneous. The Board affirmed, and Boadi now

petitions this Court for review.

II. Discussion

Congress limits our ability to review “any . . . deci-

sion . . . of the Attorney General or Secretary of Homeland

Security the authority for which is specified . . . to be in

1

Because Boadi was removable under this section, the im-

migration judge did not reach the issue of removability

under sections 1227(a)(1)(A) (obtaining immigration benefit

by fraud) or 1227(a)(1)(B) (exceeding the authorization of

his visa).

No. 12-2742 7

the[ir] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). The

good-faith marriage waiver, through which Boadi seeks

relief, is such a section. 8 U.S.C. § 1186a(c)(4) (“The Secre-

tary of Homeland Security, in the Attorney Gen-

eral’s discretion, may remove the conditional basis of the

permanent resident status”). Section 1252(a)(2)(D)

restores jurisdiction for colorable legal and constitu-

tional claims, which we review de novo.

Boadi raises four issues on appeal, two of which are

legal and two of which are largely factual despite

Boadi’s efforts to couch them otherwise. We examine

the legal claims first: that the manner in which the im-

migration judge conducted his proceedings was “funda-

mentally unfair” and that the judge “failed to identify”

the evidence admitted into the record. We then turn to

Boadi’s claims that the immigration judge erred in

making an adverse credibility determination and inap-

propriately weighed the evidence.

A. Manner of Proceedings

Boadi primarily takes issue with the manner in which

the immigration judge conducted the proceedings. Specifi-

cally, Boadi argues that when the immigration judge

continued the case after Boadi’s initial master calendar

hearing, he indicated he would decide the issue

of removability, then transfer the case to Cleveland to

determine applications for relief. At the second hearing,

however, the immigration judge told Boadi it was his

“final hearing.” He did continue the case for twenty

days so Boadi could secure counsel, but he also granted

8 No. 12-2742

DHS’s request to take testimony from its witness. In

essence, Boadi argues that he was willing to contest

removability pro se but not applications for relief.

The immigration judge’s switch, Boadi argues, had two

consequences: (1) he did not have a meaningful oppor-

tunity to cross-examine the DHS witness or present

other evidence, and (2) the immigration judge deprived

him of an opportunity to set forth “any and all applica-

tions for relief.” 2 He contends these consequences vio-

lated his rights under 8 U.S.C. § 1229a(b)(4)(B),3 which

provides the “alien shall have a reasonable opportunity

to examine the evidence against the alien, to present

evidence on the alien’s own behalf, and to cross-examine

witnesses presented by the Government.”

2

Boadi also argues the immigration judge’s conduct violated

his rights in a third way—that the Board failed to consider

the “implications” of this procedural posture. Boadi does not

explain what these implications are beyond having to

proceed pro se when the government examined its witness

and having twenty days to secure Chicago counsel instead of

more time to secure Cleveland counsel, both of which

we consider.

3

Boadi initially asserted that these procedural irregularities

deprived him of due process under the Fifth Amendment.

However, as Boadi recognizes in his reply brief, the good-faith

marriage waiver is discretionary. Discretionary waivers (i.e., the

waiver of inadmissibility) are not liberty interests and do not

implicate the Constitution. See Lagunas-Salgado v. Holder, 584

F.3d 707, 712-13 (7th Cir. 2009); Kahn v. Mukasey, 517 F.3d 513,

518 (7th Cir. 2008).

No. 12-2742 9

Preliminarily, even if Boadi believed that the hearing

would only concern removability, it is difficult to see how

the proceeding surprised him. One contested ground of

removability was 8 U.S.C. § 1227(a)(1)(A) (permitting

deportation of inadmissible aliens) because he violated

8 U.S.C. § 1182(a)(6)(C)(i), which applies to any “alien who,

by fraud or willfully misrepresenting a material fact, . . .

has procured[] a visa, other documentation, or admission

into the United States or other benefit provided under

this chapter.” Thus, in proving removability, DHS had

to prove Boadi made a misrepresentation in securing

his conditional permanent resident status. It did so

through the live testimony of the DHS agent that investi-

gated Boadi’s marriage to Bonds. Notwithstanding,

Boadi was still not deprived of an opportunity to cross-

examine the witness. For one, the immigration judge

offered him the opportunity to do so at the hearing,

which Boadi declined. But more importantly, if Boadi

thought this proved inadequate, he could have recalled

the witness (or presented new evidence) at the continued

hearing twenty days later, either personally or through

counsel. He chose not to.

Next, Boadi’s conclusory assertion that the immigra-

tion judge deprived him of an opportunity to “set forth

any and all applications for relief” lacks merit. First,

Boadi does not explain why he could not do so during

the twenty-day continuance he did receive from the

immigration judge nor does he explain why he could not

ask for an additional continuance at that hearing to do

so. In fact, at no point during the entire proceeding has

Boadi suggested there is another application for relief.

10 No. 12-2742

This all leads to the glaring absence of prejudice in

Boadi’s case. See Delgado v. Holder, 674 F.3d 759, 769

(7th Cir. 2012) (“Even if Daisy’s testimony was inappro-

priately excluded, Delgado has not shown that he was

prejudiced by this exclusion.”); Alimi v. Gonzales, 489 F.3d

829, 834 (7th Cir. 2007) (“To warrant a new immigra-

tion hearing . . . an alien must establish that she was

prejudiced, that is, that the error likely affected the

result of the proceedings.”). Boadi might have preferred

the chance to present a case in Cleveland with more

time, but even with counsel representing him on appeal

he fails to offer a single way in which the manner of

the proceeding altered the outcome. It is not enough to

suggest that cross-examination might have gone dif-

ferently or that an attorney (assuming Ohio counsel was

available) would have presented different evidence.

Maybe a better cross-examination or different evidence

would have exposed a weakness in the DHS investiga-

tion. But to succeed on appeal, Boadi must point to that

alleged weakness and explain how it affected his case.

When asked at oral argument what evidence a lawyer

would have produced, Boadi’s counsel cryptically

alluded to documents in the “government’s files” with-

out explaining what this evidence was or why it

remains unavailable to him. The most specific thing he

offered was the evidence submitted with his original

joint I-751 petition (not the good-faith marriage petition)

through which he originally received conditional perma-

nent resident status. But despite being the person that

submitted this information, Boadi does not explain what

evidence was in the petition, how it supports his claim,

or why he no longer has it.

No. 12-2742 11

This flaw in Boadi’s argument has more applicability

to the application-for-relief claim. To the extent that

twenty days was insufficient to discover additional

grounds, the immigration judge issued his decision

eighteen months ago and Boadi still has not suggested

that an actual alternative application for relief exists.

We require a showing of prejudice because we want to

avoid remanding a case that will inevitably reach the

same result. Boadi provides no suggestion that a new

hearing would end differently. In short, it is not enough

that the immigration judge’s alleged errors had the poten-

tial to prejudice Boadi. Before granting his petition for

review, he must show that the procedural irregularities

actually prejudiced him. Otherwise, the error is harmless.

B. The Immigration Judge’s Consideration of the Evi-

dence

In his next claim, Boadi essentially argues that the

immigration judge “must at least identify” all of the

evidence submitted to him “for the purposes of building

a record on appeal.” This argument relates to the gov-

ernment’s submission of evidence at his second hear-

ing. Boadi does not contend that this information is not

part of the administrative record so we do not see how

the immigration judge failed to “build a record on ap-

peal.” Instead, he argues that because the immigration

judge did not cite to this material in his oral deci-

sion, Boadi does not know how much weight the im-

migration judge attached to each piece of evidence.

Boadi seems to suggest that several of the government’s

12 No. 12-2742

submissions contained multiple documents, and in dis-

cussing these submissions the immigration judge should

have indicated precisely what portions were considered

and how much weight he attached to each portion.

No such requirement exists, however. Boadi even rec-

ognizes that the immigration judge does not need to

discuss all of the evidence; he need only consider it. And

Boadi does not contend that the immigration judge

failed to meet this requirement. In light of this conces-

sion, we do not see how the immigration judge com-

mitted legal error.

Importantly, Boadi once again fails to explain how this

alleged error prejudiced him, and we do not see how it

could have. Because we lack jurisdiction to review

factual claims, a clear articulation of the relative weight

of the evidence would make no difference to Boadi’s

appeal. The same is true in typical cases that we review

for substantial evidence, upholding an immigration

judge’s findings “if they are supported by reasonable,

substantial, and probative evidence.” Balogun v. Ashcroft,

374 F.3d 492, 498 (7th Cir. 2004). The relative weight

does not matter so long as adequate evidence sup-

ports the immigration judge’s ultimate conclusion. Ac-

cordingly, we find this claim lacks merit.

C. Credibility Determination

Boadi’s challenge to the immigration judge’s credibility

finding is a factual challenge, which we cannot review

under 8 U.S.C. § 1252(a). This sort of claim challenges

the immigration judge’s assessment of the evidence and

presents no claim of law. Moreover, section 1186a further

No. 12-2742 13

limits our review by granting the immigration judge

the exclusive power to determine “what evidence is

credible.” Boadi, however, tries to frame the issue as

legal in two distinct ways.

First, he argues that the immigration judge conflated

his determination of whether Boadi was credible with his

determination of whether Boadi met his burden of proof.

However, Boadi’s characterization of the immigration

judge’s opinion is incorrect. The immigration judge

merely determined Boadi failed to meet his burden of

proof because he was not credible. Boadi’s evidence pre-

dominantly consisted of his own testimony and explana-

tions regarding DHS’s investigation; without credibility,

there was no evidence in favor of Boadi. And in making

this credibility determination, the immigration judge

reviewed the entire record and explained his reasoning

for the determination. He examined the discrepancies

uncovered by the DHS witness and explained how

Boadi’s clarifications were unpersuasive.

Second, Boadi argues the immigration judge did not

consider the factors in 8 U.S.C. § 1229a(c)(4)(C) in making

the credibility determination. This section is permis-

sive—the “immigration judge may base a credibility

determination [on various factors].” Thus, the immigra-

tion judge was under no obligation, contrary to Boadi’s

assertion, to, for instance, consider Boadi’s demeanor,

evasiveness, or internal inconsistency. See also id. (noting

“there is no presumption of credibility” and permitting

the immigration judge to consider “the totality of the

circumstances” and the “inherent plausibility of the ap-

14 No. 12-2742

plicant’s or witness’s account”). Thus, the immigration

judge correctly followed the law in determining Boadi

was not believable.

D. Weight of the Evidence

Finally, Boadi’s assertion that the immigration judge’s

decision was against the manifest weight of the evi-

dence, as the name suggests, requests that we reweigh

the immigration judge’s assessment of the evi-

dence—something we cannot do when the application

for relief is in the Attorney General’s discretion. 8 U.S.C.

§ 1252(a). However, Boadi again tries to couch this

claim as legal. First, Boadi argues that 8 C.F.R.

§ 216.5(e)(2)(i)-(iv) required the immigration judge to

place more weight on the bills and bank account state-

ments that bore both his and Bonds’s name. That regula-

tion, however, merely lists evidence an applicant “may”

submit. It does not require the immigration judge to

attach a certain weight to it.

Boadi also argues that the immigration judge focused

exclusively on Boadi and Bonds’s conduct after the mar-

riage. Boadi essentially argues that too much emphasis

on after-the-marriage conduct runs afoul of the statute’s

requirement that the marriage be “entered into” in good

faith—i.e., the couple’s intention at the time of mar-

riage. However, conduct after the marriage is certainly

relevant to determining Boadi’s intention at the time of

his marriage. A bona fide couple’s decision to have chil-

dren, buy a house together, or introduce one another to

the other’s children suggests that they intend to begin a

No. 12-2742 15

life together. These considerations are not dispositive—

a fraudulent marriage could exhibit similar tendencies

just like bona fide couples could live apart or speak

infrequently. But they are relevant, and an immigration

judge is charged with placing the appropriate weight

on them, which 8 U.S.C. § 1252(a) prevents us from

second guessing.

III. Conclusion

For the foregoing reasons, we D ENY Boadi’s petition.

2-7-13