United States Court of Appeals For the First Circuit
No. 22-1561
ISAM ABDALLAH ALZABEN,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Selya, and Gelpí, Circuit Judges.
Saher J. Macarius and Law Offices of Saher J. Macarius LLC on brief for petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Erica B. Miles, Assistant Director, Office of Immigration Litigation, and Nicole J. Thomas-Dorris, Trial Attorney, Office of Immigration Litigation, on brief for respondent.
April 14, 2023 SELYA, Circuit Judge. Petitioner Isam Abdallah Alzaben,
a Jordanian national, was granted status as a conditional permanent
resident of the United States as a result of his marriage to a
citizen. In time, though, his inability to prove that he entered
the marriage in good faith led an immigration judge (IJ) to order
his removal. The Board of Immigration Appeals (BIA) affirmed that
order, and the petitioner now seeks judicial review. Faced with
a jurisdictional maze, we proceed step by step: in the end, we
dismiss the petition in part for want of jurisdiction and deny
what remains.
I
In January of 2001, the petitioner was admitted to the
United States on a B-1 visa as a temporary nonimmigrant business
visitor. See 22 C.F.R. § 41.31(a). Later that year, he married
a United States citizen, through whom he obtained status as a
conditional permanent resident. See 8 U.S.C. § 1186a(a). In March
of 2004, the couple jointly filed a petition to remove the
conditions associated with the petitioner's status. See id.
§ 1186a(c)(1)(A), (d)(2)(A).
As part of the review process, the United States
Citizenship and Immigration Services (USCIS) interviewed the
petitioner and his wife at its Boston field office on two
occasions. See id. § 1186a(c)(1)(B). Based on those interviews,
and after considering other evidence submitted by the couple, the
- 2 - USCIS issued a notice that it intended to terminate the
petitioner's permanent resident status unless the couple could
rectify deficiencies in their petition. The couple failed to do
so and, as a result, the USCIS denied the petition in September of
2008.
The USCIS proceeded to notify the petitioner that he was
subject to removal under 8 U.S.C. § 1227(a)(1)(D)(i) and directed
him to appear before an IJ for removal proceedings. But before
his scheduled appearance, the petitioner and his wife divorced —
and he then sought to lift the conditions on his permanent resident
status by applying for a hardship waiver on the ground that he had
entered into the marriage in good faith and that his removal would
result in an extreme hardship. See id. § 1186a(c)(4); see also 8
C.F.R. § 1216.5(a)(1).
In July of 2013, the USCIS denied the waiver request.
The petitioner was again placed into removal proceedings. For
reasons not apparent from the record, his case remained dormant
for several years before being heard in July of 2019. At that
time, he reprised his contention that he was eligible for a
hardship waiver due to his good-faith marriage.
In determining whether the petitioner qualified for a
hardship waiver, the IJ considered, among other things, the written
decision of the USCIS denying the joint petition to remove the
conditions on the petitioner's permanent residence. That decision
- 3 - rehearsed details from the interviews between the petitioner's
former wife and the USCIS, during which she struggled to remember
basic facts about the marriage (such as whether she and the
petitioner shared a post-office box, what bank they used for their
joint account, and even, on one occasion, the date on which they
had been married). So, too, the USCIS decision indicated, based
on a review of the former wife's criminal record, that during her
marriage to the petitioner, she had been living at a separate
address with another man, whom she identified as a former
boyfriend. The decision noted that in 2004 she had given birth to
a child, fathered by her boyfriend, while she had been married to
the petitioner.
In response, the petitioner offered several affidavits,
letters, photographs, financial records, and other documents,
arguing that they proved that the marriage was genuine. The IJ
afforded an affidavit from the petitioner's former wife "little to
no weight" because she had not testified in person and was,
therefore, not subject to cross examination. The IJ proceeded to
find the other evidence offered by the petitioner to be either
incredible or unpersuasive, observing that little of it bore on
the bona fides of the marriage.
In addition to this evidence, the petitioner offered his
own testimony. He attempted to explain why his former wife had
failed to remember the basic details of their marriage when
- 4 - interviewed by the USCIS, suggesting that she had been intoxicated
during the interview. The IJ found that attempted explanation
unconvincing.
When all was said and done, the IJ denied the waiver
request and ordered the petitioner removed from the country. On
appeal, the BIA reached the same conclusion. This timely petition
for judicial review followed.
II
We start with jurisdiction. "For petitions for review
of BIA decisions, our jurisdiction is circumscribed by statute."
Adeyanju v. Garland, 27 F.4th 25, 36 (1st Cir. 2022). Although we
ordinarily have jurisdiction to review final orders of removal,
see 8 U.S.C. § 1252(a)(1), Congress has foreclosed judicial review
of "any . . . decision or action" over which the Attorney General
or the Secretary of Homeland Security (the Secretary) exercises
discretionary authority, id. § 1252(a)(2)(B)(ii). Nevertheless,
the courts of appeals retain jurisdiction to review
"constitutional claims or questions of law," even if such claims
or questions arise in the course of decisions that are ultimately
discretionary. Id. § 1252(a)(2)(D).
Whether to afford a noncitizen a hardship waiver to lift
the conditions attached to his status as a permanent resident is
a decision committed to the discretion of the Secretary. See id.
§ 1186a(c)(4). To obtain such discretionary relief, a noncitizen
- 5 - must first demonstrate that he satisfies the eligibility
requirements set forth by statute. See id. As relevant here, one
eligibility criterion is that the noncitizen must have entered
into his marriage with his citizen-spouse in good faith, see id.
§ 1186a(c)(4)(B), which requires that the noncitizen prove that he
had intended to establish a life with his spouse at the time they
were wed, see McKenzie-Francisco v. Holder, 662 F.3d 584, 586-87
(1st Cir. 2011). This burden can be satisfied through probative
"evidence relating to the amount of commitment by both parties to
the marital relationship." 8 C.F.R. § 1216.5(e)(2). How that
evidence is weighed and how its credibility is assessed, though,
are determinations committed to the Secretary's "sole discretion."
8 U.S.C. § 1186a(c)(4).
Here, the BIA upheld the IJ's finding that the petitioner
was ineligible for discretionary relief because he had failed to
establish the bona fides of his marriage. And inasmuch as the
petitioner's ineligibility was dispositive of his appeal, the BIA
refrained from addressing the IJ's separate determination that the
petitioner's case did not warrant discretionary relief. The BIA
decision, then, concerns only the statutory proviso that requires
the petitioner to show that he entered into the marriage in good
faith — a requirement that we have described as being
"circumscribed by a legal standard" and, therefore, subject to
- 6 - judicial review. Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir.
2005).
The Attorney General resists this conclusion. He
asserts that the Supreme Court's recent decision in Patel v.
Garland, which held that "[f]ederal courts lack jurisdiction to
review facts found as part of discretionary-relief proceedings,"
142 S. Ct. 1614, 1627 (2022), prevents us from reviewing the BIA's
finding that the petitioner had not entered into his marriage in
good faith. According to the Attorney General, we must abrogate
our prior precedent holding to the contrary. See United States v.
Bowers, 27 F.4th 130, 134 (1st Cir. 2022) (explaining that law of
circuit may be reexamined by panel when intervening Supreme Court
decision undermines existing circuit law).
We think not. To begin, the Patel Court addressed the
language of 8 U.S.C. § 1252(a)(2)(B)(i), which strips federal
courts of jurisdiction over "any judgment" concerning the granting
of discretionary relief pursuant to various enumerated provisions
of the Immigration and Nationality Act. See 142 S. Ct. at 1621.
The Court held that the term "any judgment" included findings of
fact. Id. at 1627. The granting of a hardship waiver based on a
noncitizen's good-faith marriage, though, does not fall within one
of the enumerated provisions listed under section 1252(a)(2)(B)(i)
but, rather, qualifies as a discretionary "decision or action" of
the Secretary over which federal courts are stripped of
- 7 - jurisdiction under a neighboring provision (section
1252(a)(2)(B)(ii)). See Cho, 404 F.3d at 98-99. Thus, the Supreme
Court's gloss on the term "any judgment" in section
1252(a)(2)(B)(i) does not directly address the scope of the term
"any decision or action" employed in section 1252(a)(2)(B)(ii).
The Attorney General nonetheless posits that the Patel
Court's interpretation of section 1252(a)(2)(B)(i) applies with
equal force to section 1252(a)(2)(B)(ii). But even if we assume
(for the sake of argument only) that the Attorney General has it
right, we are unpersuaded that such an interpretation would require
an outright dismissal for lack of jurisdiction in this case.
To be sure, we previously have characterized the
determination of whether a marriage was entered into in good faith
as a factual finding, subject to deferential review. See, e.g.,
Valdez v. Lynch, 813 F.3d 407, 410 (1st Cir. 2016). But unlike
the factual findings at issue in Patel — which pertained to the
IJ's assessment of the petitioner's credibility and whether the
petitioner had subjectively intended to misrepresent his
immigration status, see 142 S. Ct. at 1620 — the determination of
whether a marriage was made in good faith requires applying a
statutory standard to evidence, see Cho, 404 F.3d at 101-02. The
good-faith-marriage determination, then, is more appropriately
conceptualized not as a wholly factual determination but, rather,
as a mixed question of law and fact. See Pullman-Standard v.
- 8 - Swint, 456 U.S. 273, 289 n.19 (1982) (defining mixed questions of
law and fact as "questions in which the historical facts are
admitted or established, the rule of law is undisputed, and the
issue is whether the facts satisfy the statutory standard"). This
is important because the Supreme Court has held that such mixed
questions are encompassed by section 1252(a)(2)(D), which retains
judicial review over "constitutional claims or questions of law
raised upon a petition," notwithstanding the jurisdiction-
stripping provisions of section 1252(a)(2)(B). Guerrero-Lasprilla
v. Barr, 140 S. Ct. 1062, 1068-73 (2020). Such an interpretation
of section 1252(a)(2)(D) makes sense, for — as the Court noted —
to hold otherwise would foreclose judicial review of any BIA
decision "applying a properly stated legal standard, irrespective
of how mistaken that application might be." Id. at 1073.
We acknowledge that it may seem counterintuitive that
whether a marriage was made in good faith (which we have
characterized as a question of fact subject to substantial evidence
review) is a question of law for the purposes of section
1252(a)(2)(D). But that incongruity simply reflects the fact-
intensive nature of the good-faith inquiry: not all mixed
questions of law and fact are mixed equally, and those that
"immerse courts in case-specific factual issues" should usually be
reviewed by appellate courts with deference. U.S. Bank Nat'l Ass'n
ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138
- 9 - S. Ct. 960, 967 (2018). There is no doubt, though, that whether
a petitioner has proved the bona fides of his marriage is a
question that implicates a legal standard. See Cho, 404 F.3d at
100. And "whether settled facts satisfy a legal standard" is a
question that comes within the ambit of section 1252(a)(2)(D) and,
thus, is properly before us on a petition for judicial review.
Guerrero-Lasprilla, 140 S. Ct. at 1068.
To summarize, we proceed upon the following principles.
The question of whether the petitioner entered into his marriage
in good faith is a mixed question of law and fact over which we
have jurisdiction, mindful that we afford the conclusion of the
BIA considerable deference, upholding its determination as long as
it is supported by substantial evidence. See Cho, 404 F.3d at
100-02. Challenges to the BIA decision that implicate pure
questions of law are reviewed de novo. See McKenzie-Francisco,
662 F.3d at 586. Wholly factual issues, such as "[t]he
determination of what evidence is credible and the weight to be
given that evidence," are left by statute to the "sole discretion
of the Secretary." 8 U.S.C. § 1186a(c)(4). We thus lack
jurisdiction to review those factual findings.1 See id.
Whether we lack jurisdiction because those determinations 1
are committed to the discretion of the Secretary, see Cho, 404 F.3d 101-02, or because, as the Attorney General contends, they are wholly factual findings, see Patel, 142 S. Ct. at 1627, is not essential to this case, and we need not address that distinction now.
- 10 - § 1252(a)(2)(B)(ii). To that extent, then, we must dismiss the
instant petition for want of jurisdiction.
III
Against this backdrop, we turn to the petition. "In the
immigration context, judicial review typically focuses on the
final decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60
(1st Cir. 2020). But "[w]here, as here, the BIA adopts and affirms
an IJ's decision 'while adding its own gloss, we review both the
IJ's and the BIA's decisions as a unit.'" Villafranca v. Lynch,
797 F.3d 91, 94 (1st Cir. 2015) (quoting Jianli Chen v. Holder,
703 F.3d 17, 21 (1st Cir. 2012)).
The petitioner challenges the BIA's decision on multiple
fronts, contending that it improperly upheld the IJ's factual
findings, that it failed to adhere to necessary legal standards,
and that it erroneously concluded that the petitioner had failed
to prove the bona fides of his marriage. We address each
contention in turn.
A
In the petitioner's view, the IJ erred in making several
factual determinations with respect to assessments of credibility
and the weighing of evidence. Specifically, the petitioner submits
that the IJ should either have credited or given more heft to the
affidavit of his former wife and the testimony of her uncle.
Relatedly, he submits that the IJ should have afforded more weight
- 11 - to his testimony concerning his former wife's supposed
intoxication during her interview with the USCIS (and,
correspondingly, that the IJ should have afforded less weight to
the statements that she made during those interviews).
As previously discussed, see supra Part II, we lack
jurisdiction either to evaluate the credibility determinations of
the IJ or to reexamine the weight that he gave to any particular
piece of evidence. The petitioner takes a series of vigorous
exceptions to how the IJ assessed the evidence, but those
assessments are not for us to review.2 See 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B)(ii). To the extent that the petition tries to
advance these challenges, we dismiss it.
B
This brings us to the petitioner's contentions that the
IJ, and thereafter the BIA, considered evidence in a manner that
2 We pause to remark the peculiarity of the IJ granting significant weight to evidence that he did not evaluate directly but, instead, gleaned from the USCIS decision denying the joint petition. The IJ noted that although the Department of Homeland Security had provided video recordings of the former wife's interviews, the immigration court lacked the necessary equipment to view those recordings. It appears (from the record before us) that the IJ drew the facts about those interviews mainly from the USCIS decision itself. For his part, though, the petitioner neither disputes nor challenges those facts. By the same token, he does not challenge the method by which the IJ found those facts. Any arguments relating to these matters are, therefore, waived. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 12 - was contrary to law. As we explain below, we find those
contentions to be without merit.
The petitioner suggests that it was unlawful for the IJ
to consider his former wife's statements during her interview with
the USCIS because she was intoxicated at the time. In support, he
cites cases that address a judge's broad discretion in determining
whether a witness is competent to testify in federal criminal
proceedings.3 See, e.g., United States v. Van Meerbeke, 548 F.2d
415, 418-19 (2d Cir. 1976); United States v. Harris, 542 F.2d 1283,
1302-03 (7th Cir. 1976).
This case law is wide of the mark. The petitioner's
former wife did not testify before the IJ. Rather, the allegations
concerning her intoxication during the USCIS interview — and we
stress that they are merely allegations — stem from the
petitioner's attempt to explain to the IJ (in the course of his
own testimony) his former wife's inability to recall basic facts
about the marriage. The IJ found that explanation unpersuasive.
Seen in that light, what the petitioner challenges, in
essence, is either an assessment of his credibility or an
assessment of the weight to be given to the statements of his
3Notably, the petitioner offers no case law, statute, or regulation pertaining to the competency of a witness in the context of a removal proceeding.
- 13 - former wife, each of which constitutes an unreviewable factual
determination. See Al-Saka v. Sessions, 904 F.3d 427, 431 (6th
Cir. 2018) ("[W]e may not second guess how the [BIA] assessed the
weight or credibility of the evidence before coming to a
decision."). "In determining whether a petitioner has raised a
colorable constitutional claim or question of law, substance must
triumph over form." Ramirez-Matias v. Holder, 778 F.3d 322, 326
(1st Cir. 2015). Imaginative labeling cannot create jurisdiction
where none exists: a noncitizen cannot "'transform an unreviewable
issue of fact into a reviewable issue of law' by the simple
expedient of cloaking what is essentially a factual claim in the
raiment of constitutional or legal error." Id. (quoting Alvarado
v. Holder, 743 F.3d 271, 275 (1st Cir. 2014)).
As a fallback, the petitioner insists that the IJ should
have excluded his former wife's statements under Rule 403 of the
Federal Rules of Evidence because the statements were unduly
prejudicial. But this is thin gruel: the Federal Rules of
Evidence do not apply in immigration proceedings. See Miranda-
Bojorquez v. Barr, 937 F.3d 1, 7 (1st Cir. 2019). Consequently,
the petitioner has failed to identify a legal basis from which to
challenge the IJ's consideration of those statements.
Next, the petitioner assigns error to the IJ's
consideration of his former wife's extra-marital affair. That
- 14 - affair, the petitioner tells us, is irrelevant to the question of
whether the marriage was entered into in good faith at its
inception. We do not agree.
It may be true in some circumstances that infidelity
after years of marriage does not signal a lack of good faith by a
couple at the time they were wed. That truism has no bearing,
though, on whether the IJ — in the circumstances at hand — was
precluded by law from considering the infidelity in the good-faith
analysis. And the petitioner's argument runs headlong into a
precedential barrier: we previously have held that, in appropriate
circumstances, evidence of infidelity may be relevant to the
evaluation of good faith as long as such evidence speaks to the
couple's commitment to the marital relationship and such
commitment, in turn, sheds light on the couple's intent at the
inception of their marriage. See Lamim v. Holder, 760 F.3d 135,
137-38 (1st Cir. 2014). Here, there is simply nothing to suggest
that the IJ's consideration of the infidelity was grounded in
anything other than an interest in ascertaining the extent of that
commitment based on factors articulated in federal regulations.
See 8 C.F.R. § 1216.5(e)(2)(i)-(iv). It follows that — under these
circumstances — the IJ's decision to consider the affair did not
constitute an error of law.
- 15 - 3
By statute, an IJ is required to mull "any credible
evidence" that concerns a petition. 8 U.S.C. § 1186a(c)(4). The
petitioner argues that the IJ flouted that requirement by ignoring
a key piece of evidence: a document that had granted the
petitioner a power of attorney over his former wife's finances,
including tax filings.
"Although an IJ may not simply ignore substantial
testimonial and documentary proof, [he] need not discuss ad nauseum
every piece of evidence." Pan v. Gonzales, 489 F.3d 80, 87 (1st
Cir. 2007). "So long as the IJ has given reasoned consideration
to the evidence as a whole, made supportable findings, and
adequately explained [his] reasoning, no more is exigible." Id.
Such is the case here. The power of attorney granted to the
petitioner related to his former wife's financial affairs, and the
IJ plainly addressed evidence that concerned the commingling (or
lack thereof) of the couple's finances. What is more, the BIA
discussed the power of attorney in its reasoning and explicitly
decided that the document did not alter the good-faith calculus.
Reading the two decisions together, see Villafranca, 797 F.3d at
94, there is no indication that either the IJ or the BIA failed to
consider the evidence as a whole.
- 16 - C
Finally, the petitioner contends that the evidence he
presented to the IJ was more than sufficient to prove that he
entered into the marriage in good faith. As we have said, the
relevant legal standard is whether the noncitizen intended to
establish a life with his spouse at the time they were wed. See
McKenzie-Francisco, 662 F.3d at 586-87. The noncitizen must carry
the devoir of persuasion on that question, which he can satisfy by
offering credible "evidence relating to the amount of commitment
by both parties to the marital relationship." Lamim, 760 F.3d at
137 (quoting 8 C.F.R. § 1216.5(e)(2)). Such evidence may include
documentation of the commingling of financial assets and
liabilities, evidence of cohabitation after the noncitizen
obtained conditional permanent residence, birth certificates of
children born as a result of the marriage, and other pertinent
proof. See 8 C.F.R. § 1216.5(e)(2)(i)-(iv).
We must uphold the agency's judgment as to the question
of good faith "so long as it is supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." Valdez, 813 F.3d at 410 (internal quotation marks omitted)
(quoting Lamim, 760 F.3d at 138). Thus, reversal is warranted
only if "the record evidence would 'compel a reasonable factfinder
to reach a contrary determination.'" Jing Lin v. Holder, 759 F.3d
- 17 - 110, 112 (1st Cir. 2014) (quoting Kinisu v. Holder, 721 F.3d 29,
34 (1st Cir. 2013)).
Taking the facts as found, we conclude that the decision
of the agency (first the IJ and then the BIA) was supported by
substantial evidence. The former wife's inability to recount basic
facts about the marriage, as well as the evidence that she was
living with another man and had a child with him, all while she
was purportedly married to the petitioner, call into serious doubt
the bona fides of the marriage. And even though the petitioner
offered various financial records, affidavits, letters,
photographs, and other evidence in an effort to support his claim
that he entered into the marriage in good faith, the evidence as
a whole demonstrated a severely limited commingling of assets and
a generally dubious commitment to the marriage by both parties.
Considering the record in its totality, there is substantial
evidence justifying a reasonable belief that the marriage was not
undertaken in good faith. Accordingly, we reject the petitioner's
last assignment of error.
IV
We need go no further. For the reasons elucidated above,
the petition for review is dismissed in part and denied in part.
So Ordered.
- 18 -