NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESSA CAMARA, No. 22-1292 Agency No. Petitioner, A077-820-701 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 27, 2024 Seattle, Washington
Before: WARDLAW, W. FLETCHER, and MILLER, Circuit Judges.
Essa Camara, a native and citizen of the Democratic Republic of the Congo,
petitions for review of a decision of the Board of Immigration Appeals dismissing
his appeal from an immigration judge’s decision denying his Petition to Remove
Conditions on Residence (Form I-751) and ordering him removed. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “We review factual findings, including adverse credibility decisions, under
the deferential substantial evidence standard.” Ai Jun Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014). Under that standard, we must accept the findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4); see Garland v. Ming Dai, 593 U.S. 357, 365 (2021). We have “no
bright-line rule under which some number of inconsistencies requires sustaining or
rejecting an adverse credibility determination,” and we instead employ a totality-
of-the-circumstances approach. Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th
Cir. 2022) (quoting Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en
banc)). The substantial evidence standard also governs the Board’s finding that a
petitioner’s marriage was not bona fide at the time the petitioner and his spouse
married. Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir. 2005). We
review de novo whether immigration officers’ conduct “was sufficiently egregious
to require application of the exclusionary rule.” Gonzalez-Rivera v. INS, 22 F.3d
1441, 1449 (9th Cir. 1994).
1. Camara challenges the agency’s conclusion that he and his witnesses,
including his wife, Safeta Rajic, did not testify credibly. When making credibility
determinations, an immigration judge should “consider[] the totality of the
circumstances, and all relevant factors.” 8 U.S.C. § 1229a(c)(4)(C). Here, both the
immigration judge and the Board accurately noted material inconsistencies in the
2 22-1292 testimony of Camara, Rajic, and Rajic’s daughter. Camara’s and Rajic’s testimony
as to when they started living together was contradictory, as was testimony
concerning the periods of their separation and cohabitation. A driver’s license and
license plate search, along with lease documents, suggested that the two did not
live together at all. Given those inconsistencies and considering the totality of the
circumstances, see Barseghyan, 39 F.4th at 1142, substantial evidence supports the
agency’s adverse credibility determination.
2. Camara insists that the immigration judge did not sufficiently justify her
determination that his marriage was not genuine. But Camara’s and Rajic’s lack of
credibility supports the conclusion that their marriage “was entered into for the
purpose of procuring [Camara]’s admission as an immigrant.” 8 U.S.C.
§ 1186a(b)(1)(A)(i); see also Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1148
(9th Cir. 2005) (explaining that inconsistencies in evidence support the
determination that an alien’s marriage is not bona fide). And their inconsistent
testimony about cohabitation and general lack of knowledge about each other
suggest that they “did not intend to establish a life together at the time they were
married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). We disagree with
Camara’s contention that the immigration judge erred in identifying events or
inconsistencies occurring after the spouses married as relevant to the bona fide
marriage inquiry. We have recognized that although “evidence of separation,
3 22-1292 standing alone, cannot support a finding that a marriage was not bona fide when it
was entered,” “the time and extent of separation, combined with other facts and
circumstances, can and have adequately supported the conclusion that a marriage
was not bona fide.” Id. at 1202. Substantial evidence supports the agency’s
determination that Camara’s marriage was not bona fide.
3. Camara argues that the immigration judge and the Board erred in denying
his motion to suppress certain evidence, including Rajic’s 2008 confession that her
marriage to Camara was a sham. Generally, the exclusionary rule does not apply in
immigration proceedings, although an exception exists for evidence obtained
through an “egregious” Fourth Amendment violation. Martinez-Medina v. Holder,
673 F.3d 1029, 1033–34 (9th Cir. 2011) (as amended). Here, there was no such
violation. Circumstances that “might indicate a seizure” include “the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” United
States v. Mendenhall, 446 U.S. 544, 554 (1980). None of those factors was present
in this case.
Furthermore, the two United States Citizenship and Immigration Services
officers who entered Rajic’s apartment testified that they followed their regular
procedures, including receiving consent to enter and asking for a written statement.
4 22-1292 Both officers also testified that they neither threatened nor pressured Rajic or her
daughter in any way. The officers supplied the only testimony about the visit that
was found to be credible. We conclude that there was no egregious Fourth
Amendment violation and affirm the denial of Camara’s suppression motion.1
4. Camara also argues that the immigration judge and the Board violated his
due process rights in “applying too low a standard of proof” and in “prejudicially”
placing the burden of proof on him instead of the government when denying his
Petition to Remove Conditions on Residence. To prevail on a due process
challenge in the context of removal proceedings, Camara “must show error and
substantial prejudice. A showing of prejudice is essentially a demonstration that
the alleged violation affected the outcome of the proceedings[.]” Larita-Martinez
v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESSA CAMARA, No. 22-1292 Agency No. Petitioner, A077-820-701 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 27, 2024 Seattle, Washington
Before: WARDLAW, W. FLETCHER, and MILLER, Circuit Judges.
Essa Camara, a native and citizen of the Democratic Republic of the Congo,
petitions for review of a decision of the Board of Immigration Appeals dismissing
his appeal from an immigration judge’s decision denying his Petition to Remove
Conditions on Residence (Form I-751) and ordering him removed. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “We review factual findings, including adverse credibility decisions, under
the deferential substantial evidence standard.” Ai Jun Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014). Under that standard, we must accept the findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4); see Garland v. Ming Dai, 593 U.S. 357, 365 (2021). We have “no
bright-line rule under which some number of inconsistencies requires sustaining or
rejecting an adverse credibility determination,” and we instead employ a totality-
of-the-circumstances approach. Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th
Cir. 2022) (quoting Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en
banc)). The substantial evidence standard also governs the Board’s finding that a
petitioner’s marriage was not bona fide at the time the petitioner and his spouse
married. Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir. 2005). We
review de novo whether immigration officers’ conduct “was sufficiently egregious
to require application of the exclusionary rule.” Gonzalez-Rivera v. INS, 22 F.3d
1441, 1449 (9th Cir. 1994).
1. Camara challenges the agency’s conclusion that he and his witnesses,
including his wife, Safeta Rajic, did not testify credibly. When making credibility
determinations, an immigration judge should “consider[] the totality of the
circumstances, and all relevant factors.” 8 U.S.C. § 1229a(c)(4)(C). Here, both the
immigration judge and the Board accurately noted material inconsistencies in the
2 22-1292 testimony of Camara, Rajic, and Rajic’s daughter. Camara’s and Rajic’s testimony
as to when they started living together was contradictory, as was testimony
concerning the periods of their separation and cohabitation. A driver’s license and
license plate search, along with lease documents, suggested that the two did not
live together at all. Given those inconsistencies and considering the totality of the
circumstances, see Barseghyan, 39 F.4th at 1142, substantial evidence supports the
agency’s adverse credibility determination.
2. Camara insists that the immigration judge did not sufficiently justify her
determination that his marriage was not genuine. But Camara’s and Rajic’s lack of
credibility supports the conclusion that their marriage “was entered into for the
purpose of procuring [Camara]’s admission as an immigrant.” 8 U.S.C.
§ 1186a(b)(1)(A)(i); see also Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1148
(9th Cir. 2005) (explaining that inconsistencies in evidence support the
determination that an alien’s marriage is not bona fide). And their inconsistent
testimony about cohabitation and general lack of knowledge about each other
suggest that they “did not intend to establish a life together at the time they were
married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). We disagree with
Camara’s contention that the immigration judge erred in identifying events or
inconsistencies occurring after the spouses married as relevant to the bona fide
marriage inquiry. We have recognized that although “evidence of separation,
3 22-1292 standing alone, cannot support a finding that a marriage was not bona fide when it
was entered,” “the time and extent of separation, combined with other facts and
circumstances, can and have adequately supported the conclusion that a marriage
was not bona fide.” Id. at 1202. Substantial evidence supports the agency’s
determination that Camara’s marriage was not bona fide.
3. Camara argues that the immigration judge and the Board erred in denying
his motion to suppress certain evidence, including Rajic’s 2008 confession that her
marriage to Camara was a sham. Generally, the exclusionary rule does not apply in
immigration proceedings, although an exception exists for evidence obtained
through an “egregious” Fourth Amendment violation. Martinez-Medina v. Holder,
673 F.3d 1029, 1033–34 (9th Cir. 2011) (as amended). Here, there was no such
violation. Circumstances that “might indicate a seizure” include “the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” United
States v. Mendenhall, 446 U.S. 544, 554 (1980). None of those factors was present
in this case.
Furthermore, the two United States Citizenship and Immigration Services
officers who entered Rajic’s apartment testified that they followed their regular
procedures, including receiving consent to enter and asking for a written statement.
4 22-1292 Both officers also testified that they neither threatened nor pressured Rajic or her
daughter in any way. The officers supplied the only testimony about the visit that
was found to be credible. We conclude that there was no egregious Fourth
Amendment violation and affirm the denial of Camara’s suppression motion.1
4. Camara also argues that the immigration judge and the Board violated his
due process rights in “applying too low a standard of proof” and in “prejudicially”
placing the burden of proof on him instead of the government when denying his
Petition to Remove Conditions on Residence. To prevail on a due process
challenge in the context of removal proceedings, Camara “must show error and
substantial prejudice. A showing of prejudice is essentially a demonstration that
the alleged violation affected the outcome of the proceedings[.]” Larita-Martinez
v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000) (quoting Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000)). Here, both the immigration judge and the Board identified
and applied the correct standard and burden of proof. The immigration judge, for
example, explained that “after considering the totality of the evidence, the court
finds that the DHS met its burden proving, by a preponderance of the evidence,
1 Camara argues that the immigration judge erred in denying his motion to suppress as untimely. Although the immigration judge described the motion as untimely, the immigration judge’s written decision reflects that the motion was denied on the merits. On appeal, the Board affirmed the immigration judge’s denial of the motion strictly on the merits and did not reach the timeliness issue. We therefore need not consider whether the immigration judge erred in describing the motion as untimely.
5 22-1292 that [Camara]’s marriage was not entered into in good faith.” Because there was no
error affecting the outcome of Camara’s proceedings, there was no due process
violation.
5. Finally, Camara argues that the immigration judge erred in failing to
advise him that he was eligible for a fraud waiver under 8 U.S.C.
§ 1227(a)(1)(H)(i)(I). That provision grants a waiver to people who were
wrongfully admitted to the country due to a misrepresentation, but only when they
fulfill certain requirements—including, most importantly, having a citizen relative.
Camara does not meet this requirement. To the extent he suggests that Rajic, as his
spouse, is such a relative, he is wrong. See Matter of Matti, 19 I. & N. Dec. 43, 44–
46 (B.I.A. 1984) (holding that an alien cannot claim a fraud waiver based on a
marriage that has been found not to be bona fide).
PETITION DENIED.
6 22-1292