17‐2240(L) Rachid Azala v. Barr BIA Lamb, IJ A079 106 658
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of March, two thousand twenty.
PRESENT: REENA RAGGI, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
RACHID AZALA, Petitioner,
‐v‐ 17‐2240‐ag; 18‐658‐ag; 19‐1107‐ag
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PETITIONER: DAVID A. ISAACSON, Cyrus D. Mehta & Partners PLLC, New York, New York.
FOR RESPONDENT: GREGORY A. PENNINGTON, Jr., Trial Attorney (Carl McIntyre, Assistant Director; Nancy E. Friedman, Senior Litigation Counsel, on the brief), for Joseph C. Hunt, Assistant Attorney General, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of decisions
of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,
and DECREED that the petitions are DENIED.
Petitioner Rachid Azala, a native and citizen of Algeria, seeks review of (1)
the BIAʹs June 22, 2017 decision affirming a July 28, 2016 decision of an Immigration
Judge (ʺIJʺ) and (2) the BIAʹs February 8, 2018 and March 27, 2019 decisions denying his
motions to reopen. In re Rachid Azala, No. A079 106 658 (B.I.A. June 22, 2017), affʹg No.
A079 106 658 (Immig. Ct. N.Y. City July 28, 2016); In re Rachid Azala, No. A079 106 658
(B.I.A. Feb. 8, 2018 & Mar. 2, 2019). We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
I. Denial of Hardship and Fraud Waivers
In 2001, Azala married his first wife and received a conditional grant of
lawful permanent resident (ʺLPRʺ) status. In 2003, they jointly filed an I‐751 petition to
remove the conditions on his LPR status. In 2005, however, his then‐wife advised the
2 U.S. Citizenship and Immigration Services (ʺUSCISʺ) under oath that Azala had paid
her to marry him and that they had never lived as husband and wife.
In 2006, after Azala and his first wife divorced and he had remarried, he
filed a new I‐751 petition and asked for a hardship waiver of the joint petition
requirement for removing the conditions on his LPR status obtained through his first
marriage and for a fraud waiver to adjust status based on his second marriage. Our
jurisdiction to review the denial of these waivers is limited to constitutional claims and
questions of law. See 8 U.S.C. §§ 1186a(c)(4), 1227(a)(1)(H), 1252(a)(2)(B), (D); Ahmed v.
Holder, 624 F.3d 150, 153‐54 (2d Cir. 2010) (holding that court lacks jurisdiction to review
denial of fraud waiver); Contreras‐Salinas v. Holder, 585 F.3d 710, 713‐14 (2d Cir. 2009)
(holding, with respect to denial of hardship waiver of joint petition requirement, that
we at minimum lack jurisdiction to review ʺcredibility determinations and the weight
given to evidenceʺ).
Azala argues that the BIA improperly applied the REAL ID Act in
affirming the IJʹs credibility determination in relation to the bona fides of his first
marriage and gave undue deference to the finding of marriage fraud made by USCIS.
While the application of an incorrect legal standard raises a question of law, see Khan v.
Gonzales, 495 F.3d 31, 35 (2d Cir. 2007), Azalaʹs arguments are unavailing.
First, on reconsideration the BIA corrected its error concerning which
I‐751 application to remove conditions was under review, clarifying that the 2006
3 hardship waiver, rather than the 2003 joint I‐751, was before the IJ. Accordingly, the
agencyʹs application of the REAL ID Act, which went into effect in 2005, was
appropriate. Pub. L. No. 109‐13, § 101(h)(2), 119 Stat. 231, 305 (2005). We otherwise
lack jurisdiction to review the credibility determination. See 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B)(ii); Contreras‐Salinas, 585 F.3d at 713.
Second, the IJ did not give undue deference to USCISʹs finding of
marriage fraud. When an IJ reviews USCISʹs denial of an I‐751, the Government must
prove, ʺby a preponderance of the evidence,ʺ that the marriage was not entered in good
faith. 8 U.S.C. § 1186a(b)(2). The IJ correctly stated this standard and found that the
Government met its burden because Azalaʹs first wife ʺunequivocally state[d] that
[Azala] provided her with money in exchange for an immigration benefit,ʺ which was
ʺhighly probative as to the invalidity of his first marriage,ʺ and because Azala did not
testify credibly about his first marriage. Supp. J. Appʹx at 610. Azala argues that his
first wifeʹs statement was not unequivocal, but that challenge goes to the weight that the
IJ afforded to the statement. Neither the weight of the evidence nor the credibility
determination, however, are subject to judicial review. See 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B)(ii).
As to the fraud waiver, Azala has not raised any constitutional claims or
questions of law. First, although the IJ stated, incorrectly, that Azala was not eligible
for the waiver, the BIA did not rely on that finding. Moreover, there is no support in
4 the record for Azalaʹs contention that the IJʹs incorrect eligibility finding affected the
alternative conclusion that he did not warrant a waiver as a matter of discretion. The IJ
considered appropriate factors in her discretionary denial. See In re Tijam, 22 I. & N.
Dec. 408, 412‐17 (BIA 1998) (listing factors). The IJ recognized Azalaʹs long residence in
United States, lack of criminal record, history of consistently paying taxes, ʺstable
employment history,ʺ and ʺessential support to his wife and child,ʺ but found that he
did not warrant a favorable exercise of discretion because his fraud and incredible
testimony were ʺserious adverse factor[s].ʺ Supp. J. Appʹx at 613; see In re Tijam, 22 I. &
N. Dec. at 414 (observing that ʺfalse testimony under oath . . . is . . . considered an
extremely serious adverse factor,ʺ even when that fraud is the basis for the waiver
sought); see also United States v.
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17‐2240(L) Rachid Azala v. Barr BIA Lamb, IJ A079 106 658
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of March, two thousand twenty.
PRESENT: REENA RAGGI, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
RACHID AZALA, Petitioner,
‐v‐ 17‐2240‐ag; 18‐658‐ag; 19‐1107‐ag
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PETITIONER: DAVID A. ISAACSON, Cyrus D. Mehta & Partners PLLC, New York, New York.
FOR RESPONDENT: GREGORY A. PENNINGTON, Jr., Trial Attorney (Carl McIntyre, Assistant Director; Nancy E. Friedman, Senior Litigation Counsel, on the brief), for Joseph C. Hunt, Assistant Attorney General, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of decisions
of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,
and DECREED that the petitions are DENIED.
Petitioner Rachid Azala, a native and citizen of Algeria, seeks review of (1)
the BIAʹs June 22, 2017 decision affirming a July 28, 2016 decision of an Immigration
Judge (ʺIJʺ) and (2) the BIAʹs February 8, 2018 and March 27, 2019 decisions denying his
motions to reopen. In re Rachid Azala, No. A079 106 658 (B.I.A. June 22, 2017), affʹg No.
A079 106 658 (Immig. Ct. N.Y. City July 28, 2016); In re Rachid Azala, No. A079 106 658
(B.I.A. Feb. 8, 2018 & Mar. 2, 2019). We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
I. Denial of Hardship and Fraud Waivers
In 2001, Azala married his first wife and received a conditional grant of
lawful permanent resident (ʺLPRʺ) status. In 2003, they jointly filed an I‐751 petition to
remove the conditions on his LPR status. In 2005, however, his then‐wife advised the
2 U.S. Citizenship and Immigration Services (ʺUSCISʺ) under oath that Azala had paid
her to marry him and that they had never lived as husband and wife.
In 2006, after Azala and his first wife divorced and he had remarried, he
filed a new I‐751 petition and asked for a hardship waiver of the joint petition
requirement for removing the conditions on his LPR status obtained through his first
marriage and for a fraud waiver to adjust status based on his second marriage. Our
jurisdiction to review the denial of these waivers is limited to constitutional claims and
questions of law. See 8 U.S.C. §§ 1186a(c)(4), 1227(a)(1)(H), 1252(a)(2)(B), (D); Ahmed v.
Holder, 624 F.3d 150, 153‐54 (2d Cir. 2010) (holding that court lacks jurisdiction to review
denial of fraud waiver); Contreras‐Salinas v. Holder, 585 F.3d 710, 713‐14 (2d Cir. 2009)
(holding, with respect to denial of hardship waiver of joint petition requirement, that
we at minimum lack jurisdiction to review ʺcredibility determinations and the weight
given to evidenceʺ).
Azala argues that the BIA improperly applied the REAL ID Act in
affirming the IJʹs credibility determination in relation to the bona fides of his first
marriage and gave undue deference to the finding of marriage fraud made by USCIS.
While the application of an incorrect legal standard raises a question of law, see Khan v.
Gonzales, 495 F.3d 31, 35 (2d Cir. 2007), Azalaʹs arguments are unavailing.
First, on reconsideration the BIA corrected its error concerning which
I‐751 application to remove conditions was under review, clarifying that the 2006
3 hardship waiver, rather than the 2003 joint I‐751, was before the IJ. Accordingly, the
agencyʹs application of the REAL ID Act, which went into effect in 2005, was
appropriate. Pub. L. No. 109‐13, § 101(h)(2), 119 Stat. 231, 305 (2005). We otherwise
lack jurisdiction to review the credibility determination. See 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B)(ii); Contreras‐Salinas, 585 F.3d at 713.
Second, the IJ did not give undue deference to USCISʹs finding of
marriage fraud. When an IJ reviews USCISʹs denial of an I‐751, the Government must
prove, ʺby a preponderance of the evidence,ʺ that the marriage was not entered in good
faith. 8 U.S.C. § 1186a(b)(2). The IJ correctly stated this standard and found that the
Government met its burden because Azalaʹs first wife ʺunequivocally state[d] that
[Azala] provided her with money in exchange for an immigration benefit,ʺ which was
ʺhighly probative as to the invalidity of his first marriage,ʺ and because Azala did not
testify credibly about his first marriage. Supp. J. Appʹx at 610. Azala argues that his
first wifeʹs statement was not unequivocal, but that challenge goes to the weight that the
IJ afforded to the statement. Neither the weight of the evidence nor the credibility
determination, however, are subject to judicial review. See 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B)(ii).
As to the fraud waiver, Azala has not raised any constitutional claims or
questions of law. First, although the IJ stated, incorrectly, that Azala was not eligible
for the waiver, the BIA did not rely on that finding. Moreover, there is no support in
4 the record for Azalaʹs contention that the IJʹs incorrect eligibility finding affected the
alternative conclusion that he did not warrant a waiver as a matter of discretion. The IJ
considered appropriate factors in her discretionary denial. See In re Tijam, 22 I. & N.
Dec. 408, 412‐17 (BIA 1998) (listing factors). The IJ recognized Azalaʹs long residence in
United States, lack of criminal record, history of consistently paying taxes, ʺstable
employment history,ʺ and ʺessential support to his wife and child,ʺ but found that he
did not warrant a favorable exercise of discretion because his fraud and incredible
testimony were ʺserious adverse factor[s].ʺ Supp. J. Appʹx at 613; see In re Tijam, 22 I. &
N. Dec. at 414 (observing that ʺfalse testimony under oath . . . is . . . considered an
extremely serious adverse factor,ʺ even when that fraud is the basis for the waiver
sought); see also United States v. Garcia, 166 F.3d 519, 522 (2d Cir. 1999) (rejecting effort to
ʺdress upʺ a ʺpoorly disguised attack on the meritsʺ by ʺcouching [an] appeal in
constitutional termsʺ) (citation omitted).
Second, the record does not support Azalaʹs argument that the IJ denied
him due process by discouraging testimony from his current wife and employer.
Azalaʹs counsel conceded that these witnesses would not add any new information
concerning the bona fides of Azalaʹs first marriage and did not ask to have them testify
on any other issue. Further, Azala has not shown that he was prejudiced by their not
testifying because the IJ recognized his steady employment and that he was a ʺcaring
father and husband,ʺ but found that his marriage fraud outweighed the equities in his
5 favor. Supp. J. Appʹx at 613; see also Garcia‐Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.
2008) (petitioner must show prejudice to make out a due process violation).
Finally, Azalaʹs argument that the agency failed to adequately consider
conditions in Algeria and other evidence of hardship to his wife and children in
deciding whether to grant a fraud waiver is unexhausted. See Brito v. Mukasey, 521
F.3d 160, 164 (2d Cir. 2008) (ʺ[W]hile not jurisdictional, issue exhaustion is mandatory.
Indeed, in order to preserve an issue for review by this Court, the petitioner must not
only raise it before the BIA, but do so with specificity.ʺ). On appeal to the BIA, he
stated that ʺthe IJ did not fully consider the hardships that [Azalaʹs] family would face,ʺ
but he failed to specify any evidence that the IJ ignored and, although Azala presented
new hardship evidence in his motions to reopen, he did not claim that previously
presented evidence was ignored. J. Appʹx at 19.
II. Motions to Reopen
We review the denial of a motion to reopen for abuse of discretion. See
Debeatham v. Holder, 602 F.3d 481, 484 (2d Cir. 2010). ʺA motion to reopen proceedings
shall not be granted unless it appears to the Board that evidence sought to be offered is
material and was not available and could not have been discovered or presented at the
former hearing.ʺ 8 C.F.R. § 1003.2(c)(1). The BIA may also deny a motion to reopen
for failure to demonstrate entitlement to the discretionary relief sought. See INS v.
Abudu, 485 U.S. 94, 104‐05 (1988).
6 Here, the BIA did not abuse its discretion in denying Azalaʹs first motion
to reopen because it acknowledged his new evidence (concerning his children, his and
his wifeʹs employment, his deepening community ties, his parentsʹ death, and
worsening Algerian country conditions), but was ʺnot persuaded that the new evidence
would meet [Azalaʹs] ʹheavy burdenʹ of showing that it is likely that the result would
change if proceedings were reopened.ʺ Supp. J. Appʹx at 112 (quoting Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (holding that alien has ʺʹheavy burdenʹ of
demonstrating that the proffered new evidence would likely alter the resultʺ and noting
Supreme Courtʹs analogy to ʺburden faced by . . . criminal defendant moving for new
trialʺ)). The BIAʹs conclusion was reasonable given that the IJ had already recognized
Azalaʹs strong positive equities, but based her discretionary denial on the weight of
Azalaʹs intentional fraud and incredible testimony. Finally, we decline to reach the
issue of whether Azalaʹs second motion to reopen was number barred because the BIA
also found that reopening was not warranted for the reasons stated in denying the prior
motion. See id.
For the foregoing reasons, the petitions for review are DENIED.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk