Benjamin N. Omorhienrhien v. William P. Barr

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 13, 2020
• Docket: 19-2175
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-2175 BENJAMIN N. OMORHIENRHIEN, Petitioner, v.

WILLIAM P. BARR, Attorney General of the United States, Respondent. ____________________

Petition for Review of an Order of the Board of Immigration Appeals. No. A200-381-476 ____________________

ARGUED JANUARY 8, 2020 — DECIDED MARCH 13, 2020 ____________________

Before FLAUM, ROVNER, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Benjamin Omorhienrhien is a Ni- gerian citizen who received conditional permanent resident status based on his marriage to a United States citizen. The two later divorced, and Omorhienrhien sought to remain in the country by submitting a petition to remove the conditions on his residency. An obstacle loomed—the petition must or- dinarily be jointly filed by the non-citizen and his spouse, but Omorhienrhien’s former spouse was no longer in the picture. 2 No. 19-2175

To sidestep the roadblock, Omorhienrhien requested a discre- tionary waiver of the joint-filing requirement, which is avail- able to non-citizens who entered their failed marriages in good faith. After hearing all the evidence, an immigration judge was not persuaded that Omorhienrhien married his wife in good faith and denied him the waiver. The Board of Immigration Appeals agreed and dismissed the appeal. Omo- rhienrhien now asks us to step in. Because our review is lim- ited to legal errors and we find none, we decline to do so. I A Benjamin Omorhienrhien came to the United States as a visitor from Nigeria in 2008. Not long after arriving, he began a relationship with Linda Harris, a citizen whom he met through friends. The two exchanged vows a few months later. The following year, Harris filed Form I-130 (Petition for Alien Relative), which would allow Omorhienrhien a path to resi- dency based on their marriage. U.S. Citizenship and Immigra- tion Services denied the petition upon discovering that Omo- rhienrhien had been legally married to another woman in Ni- geria when he tied the knot with Harris, though the Nigerian marriage had since ended. Omorhienrhien and Harris remar- ried and then submitted a new petition. That effort succeeded, and Omorhienrhien received conditional permanent resi- dency in January 2011. For an immigrant like Omorhienrhien who relies on his marriage to a United States citizen for permanent residency, the status comes with conditions, the greatest of which is that it lasts for only two years. See 8 U.S.C. § 1186a(a)(1). To re- move the conditions, Omorhienrhien had to do two things— No. 19-2175 3

submit, together with his citizen-spouse, Form I-175 (Petition to Remove Conditions on Residence), and then appear with his spouse for a personal interview. See id. § 1186a(c)(1). If Omorhienrhien did not check both boxes, the Department of Homeland Security would terminate his permanent resident status two years after he received it. See id. § 1186a(c)(2). The problem for Omorhienrhien was that he and Harris had already parted ways by the time he filed the petition to remove the conditions on his residency. Their divorce became final in July 2011, about six months after he obtained condi- tional permanent resident status. This meant that Harris did not join Omorhienrhien in filing the petition and was not around to participate in the mandatory personal interview. But the law offered Omorhienrhien another way to re- move his residency conditions. He could seek a so-called hardship waiver. The Secretary of the Department of Home- land Security has the discretion under certain circumstances to remove conditions on residency despite an immigrant fail- ing to meet the joint-petition and joint-interview require- ments. One of those circumstances is when the immigrant, though now divorced, entered into a marriage in good faith. See 8 U.S.C. § 1186a(c)(4)(B). Omorhienrhien sought a hard- ship waiver on that ground when he filed his petition, but USCIS denied it in March 2014. B The denial triggered removal proceedings. See 8 C.F.R. § 1216.5(f). In the immigration court, Omorhienrhien re- quested review of the denial of his petition to remove the con- ditions on his residency, including the USCIS decision deny- ing him a waiver. The immigration judge held a hearing on 4 No. 19-2175

the issue in December 2017. The hearing sought to answer the question at the center of Omorhienrhien’s request for a hard- ship waiver—whether he married Harris in good faith and not for the purpose of obtaining an immigration benefit. Omorhienrhien testified about his relationship with Har- ris. He explained that he was married in Nigeria but believed that the relationship had legally dissolved before he left for the United States. Once he arrived, his cousin introduced him to a friend, Pretty Hunt, and Omorhienrhien moved into her basement. Hunt introduced him to one of her coworkers, Linda Harris, and the two began a relationship in July 2008. Omorhienrhien proposed to Harris just a few months later so that they could live together without running afoul of his re- ligious beliefs. At that point, Harris occasionally stayed with Omorhienrhien at Hunt’s home. The couple married in December 2008 in a ceremony at- tended by a few friends. After learning of the Nigerian mar- riage complication, they remarried in June 2010. Omorhi- enrhien testified that he loved Harris and married her for that reason alone. He added that he lived with Harris in Hunt’s home after their first wedding. For some of that time, Harris’s daughter and grandsons lived with them. But in March 2011, Harris left and later asked for a divorce. Omorhienrhien was not certain what spurred the split. The government did not buy Omorhienrhien’s account and challenged it with documents that seemed to contradict that he and Harris lived together from December 2008 to March 2011. In the decree dissolving his marriage to Harris, the issuing court found that the parties “were married on De- cember 2, 2008 and they have been separated since July 2009.” When asked for an explanation, Omorhienrhien claimed the No. 19-2175 5

dissolution decree was false. But the government had more— a lease in Harris’s name for March 2010 to the end of February 2011. The lease not only named her alone (at an address other than Hunt’s) but also had appended to it a rental application in which Harris stated she was single and expected her only visitor to be her grandchild. Omorhienrhien explained this discrepancy by positing that Harris probably signed the lease for her daughter. Two other witnesses testified at the hearing. Both said that they had attended Omorhienrhien and Harris’s wedding, had seen the couple together at Hunt’s home, and perceived them to be a genuine married couple. Omorhienrhien also submit- ted documents like family photographs, statements from friends, and medical records for Harris’s grandchild. Following the hearing, the immigration judge found that Omorhienrhien had not shown that his marriage was bona fide and denied him a waiver of the requirements necessary for success on his petition to remove the conditions on resi- dency. In doing so, the judge noted that she believed Omorhi- enrhien had testified credibly, by which she meant he pro- vided information “to the best of his knowledge and recollec- tion.” From there the judge emphasized inconsistencies in the record with respect to Omorhienrhien and Harris’s living ar- rangement and separation. The judge also found troubling the lack of any objective evidence—including, for example, insur- ance policies, home ownership documents, and travel tick- ets—demonstrating that Omorhienrhien and Harris married with the intent to share a life together. Omorhienrhien then sought review by the Board of Immi- gration Appeals. The Board dismissed the appeal because it agreed with the immigration judge that Omorhienrhien had 6 No. 19-2175

not met his burden to prove that his marriage to Harris was in good faith. The Board added a cramped and confused in- terpretation of the immigration judge’s credibility finding. It acknowledged that the judge found Omorhienrhien credible but clarified that it did not understand her to credit all of his testimony. The Board did not explain how those two things could be reconciled. Omorhienrhien now petitions for our review. II A Congress has imposed tight restraints on our authority to review discretionary immigration decisions, generally re- moving them from our jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)(ii). The Board’s denial of Omorhienrhien’s ap- plication for a good-faith marriage waiver is one such deci- sion. See Boadi v. Holder, 706 F.3d 854, 857 (7th Cir. 2013). The narrow jurisdiction we do possess extends only to constitu- tional claims and legal questions. See 8 U.S.C. § 1252(a)(2)(D). In that limited endeavor to correct legal errors, we review the immigration judge’s opinion as supplemented by the Board’s. See Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). Omorhienrhien insists that he raises a question of law— the immigration judge applied too high a standard of proof. All agree that Omorhienrhien bore the burden of proving by a preponderance of the evidence that he married Harris in good faith, and the immigration judge expressly adopted that standard. Omorhienrhien’s point is more subtle. He argues that the judge, although saying the preponderance standard applied, proceeded to review the evidence and make findings under a more demanding standard. While we follow No. 19-2175 7

Omorhienrhien’s argument just fine, it comes dangerously close to inviting us to step into the forbidden territory of re- viewing the immigration judge’s factual determinations. Our review must remain more limited: we look only at whether the immigration judge applied the correct legal standard. B Omorhienrhien takes his cue from Lara v. Lynch, 789 F.3d 800 (7th Cir. 2015), where an immigrant succeeded in his quest for review under the same argument but different cir- cumstances. Gerardo Hernandez Lara stood in a similar pro- cedural posture as Benjamin Omorhienrhien. Lara had re- ceived conditional residency through his wife, a United States citizen, and the two jointly filed the petition to remove the conditions. See id. at 801–02. Lara’s wife likewise left him be- fore it came time for the couple to fulfill the joint-interview requirement. Like Omorhienrhien, Lara then sought a waiver of the requirement by showing that his marriage had been in good faith. See id. at 802. The similarities end there. Lara testified that he married his ex-wife because he loved her, and the government did not submit any opposing evidence—literally none. See id. at 803. The immigration judge nevertheless denied Lara’s petition for a waiver, finding that his testimony was neither sufficiently detailed nor consistent with some of his documentary evi- dence. See id. at 804. The judge did not make a credibility de- termination. On appeal the Board assumed that Lara’s testi- mony was credible but from there concluded that Lara’s ac- count was itself insufficient to meet the preponderance of ev- idence standard. See id. 8 No. 19-2175

When Lara’s case arrived to our court, we granted his pe- tition for review because the Board “applied too high a bur- den of proof.” Id. Our reasoning was as straightforward as the record evidence: with no opposition from the government, Lara testified that he married his wife because he loved her— not to obtain an immigration benefit—and “[i]f, as the Board assumed, [Lara] testified truthfully, then this testimony alone is enough to prove that his marriage to [his ex-wife] was more likely than not bona fide.” Id. We therefore held “[t]he Board’s failure to reach that conclusion is a legal error.” Id. at 805. C This case is not Lara. The immigration judge saw two key distinctions, and both are spot-on. First, unlike in Lara, where the government offered no ev- idence whatsoever to challenge the legitimacy of the mar- riage, see id. at 803, here the government presented evidence that conflicted with and discredited Omorhienrhien’s testi- mony. Take, for example, Omorhienrhien’s testimony that he and Harris lived together from December 2008 to March 2011. The government responded by presenting a lease for an apart- ment in Harris’s name that began in March 2010, when she was supposedly living with Omorhienrhien. The immigration judge in Lara’s case had to decide whether his testimony, un- challenged by any objective evidence from the government, met the bar for relief. But here the immigration judge weighed the evidence and found that contradictory documents under- mined Omorhienrhien’s testimony. More to it, the judge de- termined that absent additional corroborating evidence, Omorhienrhien’s testimony fell short of establishing by a pre- ponderance that he married Harris in good faith. We do not have the jurisdiction to second-guess that weighing of No. 19-2175 9

evidence. See Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008) (“[A] disagreement with the weight assigned by the im- migration courts to particular evidence does not present a question of law.”). So, too, is there a second difference with Lara. The REAL ID Act provides that “[w]here the immigration judge deter- mines that the applicant should provide evidence which cor- roborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the appli- cant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1229a(c)(4)(B). In Lara, neither the Board nor the immigration judge faulted the petitioner for failing to come forward with available corroborating evi- dence. See 789 F.3d at 806. Not so here. The immigration judge voiced a concern over “the com- plete lack of objective evidence” and identified a laundry list of documents that might have assuaged the unease—some- thing even as simple as a ticket showing that Omorhienrhien and Harris went on a vacation together. Omorhienrhien con- tends that he had no access to any such evidence. By way of example, he states he had an informal living arrangement in someone’s basement, leaving him without a lease to give the judge. But Omorhienrhien offers no explanation for why he could not provide the immigration court with the other spe- cific examples of missing corroborating evidence. The immi- gration judge thought it surprising, for instance, that Omorhi- enrhien lacked any evidence from a community or religious organization, given that he was a preacher and said he and Harris attended church together. On this record, we cannot say that the judge’s conclusion that Omorhienrhien lacked available corroborating evidence was unreasonable. See 10 No. 19-2175

8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination made by a trier of fact with respect to the availability of cor- roborating evidence … unless the court finds … that a reason- able trier of fact is compelled to conclude that such corrobo- rating evidence is unavailable.”). In the end, then, what was true for Lara is not for Omorhi- enrhien. The immigration judge here applied the correct standard of proof, both in word and in substance. Finding no legal error and lacking the authority to go beyond that bound- ary, we DENY the petition for review.