Date: 12-24-2017

Case Style:

Case Number: 17-1380

Judge: Kayatta

Court: United States Court of Appeals for the First Circuit on petition for review from an order of the Board of Immigration Appeals

Plaintiff's Attorney: Saher Macarius

Defendant's Attorney: Sunah Lee, Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and
Cindy S. Ferrier, Assistant Director, Office of Immigration
Litigation, on brief for respondent.

Description: Elizabeth Wairimu Gitau
petitions for review of a decision from the Board of Immigration
Appeals ("BIA") dismissing her appeal of an Immigration Judge's
("IJ") decision ordering her removal to Kenya. Having reviewed
the BIA's decision, including the decision of the IJ as adopted by
the BIA, see Guerrero v. Holder, 667 F.3d 74, 76 (1st Cir. 2012),
as well as the record and the parties' briefs, we deny Gitau's
petition.
I.
Gitau is a native and citizen of Kenya. Following a
marriage to a United States citizen, Undray Johnson, Gitau became
a lawful permanent resident on a conditional basis. Under 8 U.S.C.
§§ 1186a(c)(1)(A) and (B), she and Johnson could remove the
conditional nature of her status by jointly filing Form I-751, the
Application to Remove the Conditions of Residence. They divorced,
however, and Gitau was unable to satisfy the joint filing
requirement. She filed a petition to waive the joint filing
requirement, pursuant to 8 U.S.C. § 1186a(c)(4) and 8 C.F.R.
§ 1216.5, which permit an alien who cannot satisfy the joint filing
requirement to nonetheless avoid removal if certain conditions are
met. That petition was denied. She was subsequently placed in
removal proceedings, whereupon she renewed her request for a
waiver. In her waiver requests, she relied upon three subsections
of the regulation addressing such waivers, two of which required
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a showing that she entered into the marriage in good faith, 8
C.F.R. §§ 1216.5(a)(1)(ii)–(iii), and the third of which required
a showing that her removal would result in extreme hardship, 8
C.F.R. § 1216.5(a)(1)(i).
After a testimonial hearing, the IJ ruled against Gitau,
finding her not to be a credible witness and finding the evidence
other than her own testimony to be insufficient to support her
claim that she entered into her marriage in good faith. The IJ
also found that Gitau had not demonstrated extreme hardship.
Rejecting Gitau's appeal, the BIA adopted and affirmed the IJ's
decision, determining that the IJ did not clearly err in finding
Gitau's testimony not credible, and that the IJ adequately
considered her documentary evidence. Gitau now asks us to set
aside the BIA's decision for lack of substantial evidence
supporting its findings.1
1 The Statement of Issues in Gitau's brief also lists as an
issue before us: "Whether the BIA's decision is arbitrary and
capricious and not in accordance with current immigration policy."
That formulation of the issue would seem to be less favorable to
Gitau than the substantial evidence test argued elsewhere in her
brief. Be that as it may, she does not press this formulation in
the substantive portions of her brief, thus waiving it. See Puerto
Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st Cir.
2017). She also alludes to due process concerns in her Summary of
Argument, but similarly fails to develop any argument on this
point, thus waiving it as well. Id.
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II.
A.
To establish that she entered into her marriage in good
faith, Gitau must demonstrate that she "intended to establish a
life with [her] spouse at the time of marriage." Valdez v. Lynch,
813 F.3d 407, 410 (1st Cir. 2016) (internal quotation marks
omitted) (quoting Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir.
2005)). In making this determination, the Secretary of Homeland
Security is to "consider any credible evidence relevant to the
application." 8 U.S.C. § 1186a(c)(4). Congress assigned to the
immigration authorities, not to this Court, the responsibility for
determining the credibility of an applicant's testimony. See id.
("The determination of what evidence is credible and the weight to
be given that evidence shall be within the sole discretion of the
Secretary of Homeland Security."). As a result of this statutorily
compelled deference, we review credibility determinations under
the substantial evidence standard, which "requires us to uphold
the agency's findings so long as the record does not 'compel a
reasonable factfinder to reach a contrary determination.'" Rivas-
Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009) (quoting Chhay v.
Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)). This deference is great,
but "not unlimited." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.
201).

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In reviewing a credibility determination, we recognize
that the law governing removal proceedings expressly authorizes
the IJ to consider "demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the . . .
account, the consistency [of the evidence] . . . and any
inaccuracies or falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant's claim." 8 U.S.C. § 1229a(c)(4)(C). So,
too, the IJ must consider any corroborating evidence offered, id.
§ 1229a(c)(4)(B), and assess the evidence as a whole. Jabri, 675
F.3d at 24.
It is undisputed that a wedding took place in October
2004. The issue, though, is whether Gitau entered into the
marriage in good faith. Examination of Gitau at the hearing
trained on determining how Gitau remembered her courtship and
wedding, how well she knew Johnson and his friends, and what living
arrangements ensued. The IJ found that Gitau's testimony contained
numerous statements inconsistent with ones she had made
previously, and as such, she had "failed to testify credibly
regarding her marriage." In so finding, the IJ pointed to four
ways in which Gitau's testimony conflicted with other evidence,
most significantly her own prior statements made to the United
States Customs and Immigration Service ("USCIS") and statements
contained within various sworn declarations. These
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inconsistencies involved: the length of Gitau and Johnson's
courtship, the identity of the attendees at their wedding, the
identity of the persons residing with them, and the timeframe of
her separation from Johnson. The IJ considered the inconsistencies
along with Gitau's explanations for them, and ultimately
determined that the inconsistencies rendered her testimony not
credible. The IJ also found that her other evidence insufficiently
corroborated, and actually contradicted, her testimony.
We have reviewed the transcript of Gitau's testimony and
the portions of the record said to be inconsistent with that
testimony. As to the length of her courtship, though her testimony
was arguably inconsistent, this inconsistency may be explained by
differing understandings of engagement and dating, or simply by
non-malicious inaccuracy, fading memory, or imprecise questioning.
Though the IJ mentioned this inconsistency, he did not discuss it
in depth, and appeared to place little weight on it. He placed
more weight on Gitau's troubles with accurately identifying the
guests at her wedding. In her testimony, Gitau identified these
guests as her sister, Donald Dennard (her sister's boyfriend), and
Peter Hicks. Gitau's 2010 statement to USCIS, however, claimed
that the wedding attendees were her sister and a "Peter Smith."
She also told USCIS in 2010 that she did not recognize the names
Peter Hicks and Donald Dennard. Since there is other evidence
that someone by the name of Peter Hicks was Johnson's friend, it
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is possible that Gitau's memory simply faded as time passed since
the 2004 wedding. On the whole, though, this was not the type of
testimony that got Gitau off on a good foot.
As for who lived with her and when, Gitau's statements
were also inconsistent, but only if one excluded the possibility
that her mother's brief stays with her were not "living with her."
Less easy to explain -- for Gitau -- are her inconsistent
statements about a very important point: when she and Johnson
separated. She told the IJ, repeatedly, that Johnson moved out in
January 2007. Previously, though, she had stated in a declaration
to USCIS that Johnson had left in June 2008, and had testified
before USCIS that he had left in November 2008. On appeal, Gitau
suggests that Johnson had various types and degrees of departure
between 2007 and late 2008. The IJ -- who actually observed
Gitau's testimony -- was not inclined to view it so charitably.
He also considered and rejected Gitau's claim that her failure to
testify consistently could be attributed to anxiety.
Though the remainder of Gitau's testimonial evidence
largely supported her claim, none of it did so decisively, as it
consisted primarily of testimony from her sister and uncle, as
well as witness statements in affidavits. Moreover, the IJ also
found inconsistencies in the testimony of Gitau's sister, thus
reducing even further the persuasive value of this testimony. And
the documentary evidence Gitau provided, consisting of bills,
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financial records, and the like, was similarly inconclusive. It
does appear that Gitau and Johnson filed a joint federal tax return
for 2006 reflecting the address at which Gitau says they then
resided together, but Johnson's W-2 forms for that same year show
a different address. Gitau also offered copies of statements and
bills addressed to the couple, all but one of which post-date the
January 2007 claimed date of separation. And certainly it did not
help Gitau's cause that the evidence also showed that in 2007
Johnson purported to marry two other individuals seeking residence
status in the United States.
On this record, a reasonable factfinder could have gone
either way on the question of whether Gitau was credible, and
consequently, on the question of whether she carried her burden of
proving that she married Johnson in good faith. There being no
plausible claim of legal error, we therefore lack any ability to
substitute our assessment of the evidence for that of the IJ.
Accordingly, we conclude that there was no error in denying Gitau
a waiver based on a good faith marriage pursuant to 8 U.S.C.
§§ 1186a(c)(4)(B) or (C).
B.
As an alternative ground for a waiver, Gitau argued to
the IJ and BIA, and contends here, that she would suffer extreme
hardship were she to be removed, and thus should have been granted
a waiver under 8 U.S.C. § 1186a(c)(4)(A). The government counters
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that as a threshold matter, we lack jurisdiction to review the
BIA's determination as to extreme hardship, and that in any event,
the BIA was correct to deny the waiver.
We are not persuaded by the government's jurisdictional
argument. It is true that under 8 U.S.C. § 1252(a)(2)(B)(ii),
Congress removed our jurisdiction over any "decision or action of
the Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of Homeland
Security." However, we have made clear that there is a distinction
between questions of law concerning eligibility for relief and the
ultimate decision of the Secretary to grant such relief if
eligibility is found. See Cho, 404 F.3d at 101–02. Stressing the
courts' "customary power to be the final word on the meaning of
legal concepts," we have held that we have jurisdiction to review
the BIA's application of the law in determining whether the
eligibility factors are satisfied, but lack jurisdiction to review
the Secretary's final decision to grant or withhold discretionary
relief. Id. at 102 ("We hold today . . . that eligibility rulings
under section 1186a remain reviewable by the courts . . . .").
The government tries to distinguish Cho -- which dealt
with a determination of good faith marriage, as opposed to a
determination of extreme hardship -- on the basis that the good
faith determination is governed by objective regulatory criteria,
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while the extreme hardship determination is not. However, this is
not entirely accurate. The regulation governing extreme hardship
contains two dictates: the Secretary "shall" consider only the
circumstances that arose during the time period of the applicant's
conditional residence in the United States,2 and the Secretary
"shall" likewise "bear in mind" that all removals result in some
hardship, and the waiver should only be granted for the subset
where the hardship is extreme. 8 C.F.R. § 1216.5(e)(1). This is
not dramatically different it its degree of objectivity from the
regulatory guidance given for the determination of a good faith
marriage; indeed, the only mandatory consideration under that
subsection of the regulation is that the Secretary "shall consider
evidence relating to the amount of commitment by both parties to
the marital relationship." 8 C.F.R. § 1216.5(e)(2). The
2 The language of the statute and the language of the
regulation differ slightly as to the relevant time period; the
former states that the relevant timeframe is only the period of
conditional resident status, while the latter would seem to allow
for an open-ended timeframe. Compare 8 U.S.C. § 1186a(c)(4)
("[T]he Secretary . . . shall consider circumstances occurring
only during the period that the alien was admitted for permanent
residence on a conditional basis.") with 8 C.F.R. § 1216.5(e)(1)
("[T]he director shall take into account only those factors that
arose subsequent to the alien's entry as a conditional permanent
resident."). However, the BIA has made clear that the only
relevant time period is the period of conditional resident status,
and as a result, any event that serves as a basis for a hardship
finding must occur during this period, not simply subsequent to
the grant of conditional resident status. See Matter of Munroe,
26 I & N Dec. 428, 435 (BIA 2014). Gitau does not contend that
Matter of Munroe was decided in error, and we assume without
deciding that it correctly states the applicable law.
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subsection goes on to list certain evidence that may satisfy this
requirement, but it does not provide that this evidence constitutes
the exclusive set of evidence the director shall consider. See
id. § 1216.5(e)(2). Viewed in terms of what is actually mandatory
for the Secretary, the differences between the regulatory
treatment of the good faith determination and the extreme hardship
determination are matters of degree, not kind. Thus, this
distinction is not an adequate basis to depart from the holding of
Cho that threshold determinations of eligibility for a waiver are
reviewable, while the ultimate grant or denial of a waiver is not.
Turning to the merits of Gitau's hardship claim, we have
no trouble concluding that the BIA's finding on the question of
extreme hardship was supported by substantial evidence.3 As
contemplated by the regulation, removal necessarily involves some
hardship, so an applicant must demonstrate hardship that goes
beyond those normally attendant to removal. See Id.
§ 1216.5(e)(1). And the extreme hardship must be due to conditions
arising during the applicant's time as a conditional permanent
resident. Id.; see also 8 U.S.C. § 1186a(c)(4); note 3, supra.
3 The government contends that the standard of review on this
question is abuse of discretion. In support, it cites Gebremichael
v. INS, 10 F.3d 28 (1st Cir. 1993). However, that case actually
cuts against the government's contention. We noted in Gebremichael
that while a motion to reopen or reconsider would be reviewed for
abuse of discretion, determinations about statutory eligibility
for relief are reviewed for substantial evidence. See id. at 34
n.17.
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Here, the BIA and IJ considered the evidence of hardship Gitau put
forward, both individually and in the aggregate, and determined
that much of the evidence concerning conditions in Kenya did not
relate to the relevant period, but instead described general
conditions in the country before and after the period. The same
was true of evidence concerning changes in Gitau's life, for
example, her student loan debt. The IJ and BIA determined that
this debt, and the other changes she alleged, also occurred outside
of the relevant time period. The only evidence of hardship the IJ
considered to be not barred due to timing concerns was Gitau's
testimony that it would be impossible for her to find work in her
field in her parents' village in Kenya.4 The IJ (and the BIA, in
adopting the IJ's decision) considered this point, but concluded
that there was no evidence that Gitau would not be able to find
employment somewhere in Kenya, and thus, this hardship would not
be extreme. On this record, we cannot say that a reasonable
factfinder would have been "compelled" to reach the opposite
conclusion, and thus Gitau's challenge fails on substantial
evidence review. See Rivas-Mira, 556 F.3d at 4.
4 Even this is arguable, as Gitau based the contention that
she was unemployable on the fact that she had an advanced
education. As the IJ noted, she acquired her advanced degree in
2004, outside the relevant time period. That said, the IJ appeared
to consider this particular form of hardship on the merits and not
simply disregard it as outside of the proper timeframe.

Outcome: Gitau has failed to meet her burden of demonstrating
that the BIA's decision was not supported by substantial evidence.
The petition for review is denied.

Plaintiff's Experts:

Defendant's Experts:

Comments: