Fitiwi v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2023
• Docket: 22-67
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED APR 25 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIAL GAFRE FITIWI, No. 22-67 Agency No. Petitioner, A062-367-879 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 20, 2023** San Francisco, California

Before: SCHROEDER, CALLAHAN, and BUMATAY, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Daniel Gafre Fitiwi, a native and citizen of Ethiopia, petitions for review

of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the

denial of his application for a “good faith marriage” waiver under 8 U.S.C.

§1186a(c)(4)(B). Under that statute, Petitioner had the burden of establishing

eligibility for the waiver by showing his marriage was entered into in good

faith. See Hammad v. Holder, 603 F.3d 536, 543 (9th Cir. 2010).

The denial was premised on numerous inconsistencies in the evidence

Petitioner presented, and on his explanations, which the Immigration Judge

found to be implausible. Many of the inconsistencies concerned whether

Petitioner considered the two children born during the marriage to be his

biological children. There was also a notable lack of any family photographs

with the children. The conclusion that Petitioner failed to establish he entered

into his marriage in good faith is supported by substantial evidence. See Damon

v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004) (stating that whether a

noncitizen entered into a marriage in good faith to be eligible for the waiver is

an intrinsically fact-specific question that is reviewed under the substantial

evidence standard). There is no evidence compelling a contrary finding.

Because the reasons for rejecting Petitioner’s explanations are clear, the

Supreme Court’s recent decision in Garland v. Dai, 141 S.Ct. 1669 (2021), does

not require remand. See id. at 1681.

PETITION DENIED.