CA7 affirmed denial of I-130 of bona fide marriage on basis of prior fraudulent marriage to another woman

Dist. Ct. did not err in granting defendant’s motion for summary judgment in plaintiff-alien’s action challenging immigration authorities’ denial of his request under I-130 petition seeking lawful permanent resident status based upon his marriage to U.S. citizen, where instant denial was based on finding that alien had previously attempted to gain lawful residency status by fraudulent marriage to another woman. Substantial evidence, included written admission by alien that he paid former wife and another individual for help in obtaining permanent residency status, supported finding that alien’s earlier marriage was fraudulent. Ct. rejected alien’s claim that his written confession was coerced, where alien could produce only vague and inconsistent contentions of misconduct to undermine his confession of marriage fraud.

Mohit and Ankush Seghal filed an I-130 petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a U.S. citizen. The petition was denied as Mohit had tried years earlier to gain lawful residence in the U.S. by a fraudulent marriage to another woman, making him ineligible for relief even though his marriage to Ankush is legitimate, 8 U.S.C. 1154(c). The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order, so he properly challenged the denial in the district court under the Administrative Procedure Act. The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. The Seventh Circuit affirmed. Although the agency’s handling of the case involved procedural errors, the decision was legally sound. Substantial evidence, including Mohit’s own written admission, supported the agency’s finding that Mohit’s earlier marriage was fraudulent. Sehgal v. Lynch, No. 15-2334 (7th Cir. 2016)

___________________________

In the United States Court of Appeals For the Seventh Circuit No. 15-2334

ANKUSH SEHGAL and MOHIT SEHGAL

Plaintiffs-Appellants,

v.

LORETTA E. LYNCH, Attorney General of the United States, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 13 C 8576 — John Robert Blakey, Judge.

ARGUED DECEMBER 15, 2015 — DECIDED FEBRUARY 22, 2016

Before BAUER, POSNER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. This appeal arises from an unusual immigration case that was filed properly in the district court. Plaintiffs Mohit and Ankush Seghal filed an “I-130” petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a citizen of the United States. Immigration authorities denied their petition on the ground that Mohit had tried years earlier to gain lawful residence in the United States by a fraudulent marriage to another woman. That made him ineligible for relief even though his marriage to Ankush is legitimate. See 8 U.S.C. § 1154(c).

The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order. The proper means to challenge the denial is therefore a suit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-76 (7th Cir. 2009). The Seghals sued under the APA.

The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. We affirm. Although the agency’s handling of this case has involved procedural errors that are difficult to understand, the bottom-line decision was legally sound. Substantial evidence, including Mohit’s own written admission, supports the agency’s finding that Mohit’s earlier marriage was fraudulent, so the denial of Ankush’s I-130 petition on his behalf was correct.

We begin with the story of Mohit’s earlier marriage to Renee Miller. Mohit Sehgal entered the United States lawful- ly on a visitor’s visa in September 2000 but overstayed his visa. Three years later, in June 2003, he married Renee Miller, a United States citizen. She then submitted on Mohit’s behalf a Form I-130, called a Petition for Alien Relative, to have him recognized as an immediate relative for immigration purposes. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). At the same time, Mohit filed a Form I-485 application to adjust his status to lawful permanent resident based on his claimed family relationship to U.S. citizen Miller. See 8 U.S.C. § 1255(a).

Immigration authorities investigated the marriage be- tween Mohit and Miller and concluded that it was not a good faith marriage. During a 2005 interview concerning Miller’s I-130 petition, Mohit and Miller asserted that they lived together at the home of Mohit’s mother. An immigration agent had telephoned Mohit’s mother in March 2005 and was told that she had “no idea” where to find Miller and had no means of contacting her. Based on that conversation and the lack of evidence of a “joint marital union,” Miller’s petition was denied in November 2005 by United States Citizenship and Im- migration Services (“USCIS”).

Miller responded by submitting additional evidence to bolster the claim of a legitimate marriage. She included bank statements from a joint account, rent receipts purportedly from Mohit’s mother, and two sworn statements in the mother’s name saying that Miller and Mohit had lived with her since June 2003. Almost a year after receiving those documents, in December 2006, USCIS reopened the proceedings on Miller’s I-130 petition.

By then, however, the marriage between Miller and Mohit had ended. Miller gave birth in 2007, and USCIS received a letter apparently signed by Mohit admitting that he was not the child’s father. Miller later obtained a court order of protection against Mohit. In July 2008, an Illinois court entered a default judgment dissolving the marriage. The judgment noted that the parties had separated around October 2003, just four months after they married. Afterward, in December 2008, Miller and Mohit both failed to appear for a scheduled interview with USCIS. In March 2011 the agency denied the reopened I-130 petition on the ground that there no longer was a marital relationship.

In the meantime, in September 2009, agents working for Immigration and Customs Enforcement (“ICE”) had arrested Mohit while investigating the woman who had prepared Miller’s I-130 petition for brokering fraudulent marriages. Her name was Teresita Zarrabian, and she eventually pled guilty to conspiring to defraud the United States under 18 U.S.C. § 371. She was sentenced to three years in prison. United States v. Zarrabian, No. 13-cr-00106-1 (N.D. Ill. July 1, 2015).

Mohit gave the ICE agents a sworn confession admitting that he had paid Zarrabian and Miller for help in obtaining permanent residency by marrying Miller. Zarrabian had introduced him to Miller, he said, and arranged the marriage in exchange for $18,000 to be shared by the two women. Mohit’s confession concluded by saying that his union with Miller “was not a real marriage” and was done so that he could obtain “permanent status” in the United States. Mohit initialed the three pages of text and swore that he had read each page of the confession and had given it “freely and voluntarily.”

In March 2011, Miller gave ICE agents a written statement corroborating Mohit’s earlier confession that their marriage had been a sham. That handwritten statement, which was not shared with Mohit until the district court proceedings, explained that Miller was promised $5,000 to marry him. The couple had intended to divorce, the statement continued, after Mohit received a “green card.” Although the agent who faxed Miller’s statement wrote on the transmittal page that it was sworn, no language in the statement itself shows that Miller had signed it under penalty of perjury.

Mohit’s confession of the earlier marriage fraud and the corroborating 2011 statement by Miller suffice to support the finding of fraud. See Ogbolumani v. Napolitano, 557 F.3d 729, 733–34 (7th Cir. 2009) (concluding that USCIS did not err in basing denial of petition on admission of marriage fraud); Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided “substantial evidence” that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s admission that she married alien as favor to help him obtain permanent residency shows that they “did not intend to establish a life together as husband and wife when they married”). Moreover, Mohit’s story contains numerous inconsistencies, including the dates he allegedly lived with and separated from Miller. See Reynoso v. Holder, 711 F.3d 199, 207 (1st Cir. 2013) (explaining that record did not compel conclusion of bona fide marriage when oral and written statements were inconsistent).

On appeal, the Seghals attempt to undermine this evidence of marriage fraud by attacking both Miller’s handwritten statement and Mohit’s September 2009 sworn confession to ICE agents.

Miller’s Statement: First, the Sehgals contend, Miller’s statement should be disregarded as unreliable hearsay. Hearsay is admissible in immigration proceedings as long as it is probative and its use is not fundamentally unfair. See Ogbolumani, 557 F.3d at 734; Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir.2004).

Miller’s handwritten statement details the scheme between Miller, Mohit Sehgal, and Zarragian to commit mar- riage fraud. It is highly probative as to whether Mohit entered into a marriage to gain an immigration benefit. And the Sehgals give no reason to question the statement’s reliability other than the fact that it is unsworn. Their speculation about Miller’s motive for writing the statement and the “chain of custody” is insufficient to undermine the evidence. See Ogbolumani, 557 F.3d at 734; Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir. 2007).

But we also now know that USCIS and the Board did mis- characterize Miller’s statement as “sworn.” Twice in its brief to this court the government referred to Miller’s statement as “sworn,” despite the assertion in the Seghals’ brief that it was not. The government’s brief would not be cause for concern if it were accurate, but elsewhere in the same brief (and when pressed at oral argument) the author of the brief conceded that Miller’s statement was not sworn.

It is difficult to understand how the government could take both positions. It seems from the record that the government was content to continue mischaracterizing Miller’s state- ment as sworn until after a copy finally was shown to the Sehgals during the proceedings in the district court. The time to have set the record straight was immediately after USCIS mischaracterized Miller’s statement as sworn, not more than four years later after that same mistake was made in submissions to the BIA, the district court, and now this court. The label matters. As the Sehgals correctly argue, Miller’s state- ment may have been weighed more heavily than it should have been if it had been known to be unsworn. See Yu Yun Zhang v. Holder, 702 F.3d 878, 881–82 (6th Cir. 2012) (recognizing that affidavits often are given more weight than unsworn statements); Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008) (same).

Still, although we are disappointed by the government’s sloppiness, this error by USCIS and the Board was harmless. Miller’s handwritten statement is corroborated in large part by Mohit’s September 2009 confession. That confession was sworn and came from Mohit himself, and it was clearly an ad- mission against interest. See 5 U.S.C. § 706 (instructing reviewing court to take “due account” of “rule of prejudicial error”); People of the State of Ill. v. I.C.C., 722 F.2d 1341, 1348 (7th Cir. 1983) (recognizing harmless error as exception to Chenery doctrine). And given Mohit’s confession, Miller’s statement was not necessary to the finding of marriage fraud.

Mohit Seghal’s Confession: We now turn to the Seghals’ attack on Mohit’s own confession of marriage fraud. Recall that Mohit had made that confession in writing in 2009 after he was arrested by ICE agents. Mohit was released without charges and four months later married Ankush, who filed a new I-130 petition on Mohit’s behalf. The Seghals argue that Mohit’s confession was coerced, is not reliable, and thus does not provide substantial evidence of fraud.

The exclusionary rule does not ordinarily apply in immigration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). Suppression may be justified, however, if evidence was obtained under circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Martinez, 468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter of Toro, 17 I. & N. Dec. 340, 343 (1980).

An alien claiming coercion by government officials “must come forward with proof establishing a prima facie case be- fore the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence.” In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v.Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).

Mohit first asserted coercion on March 15, 2011, when he and Ankush were interviewed in connection with her I-130 petition. Mohit asserted that he had not been given a copy of the 2009 written confession. He claimed that while he was in ICE custody, he had been “handcuffed despite being in a cast,” “almost tortured,” and “kept in a dark room and then in a stinking bathroom in the dark.” According to Mohit’s new account, which again was sworn, he had married Miller with the “honest perception” that he “would live a life with her.”

Days later the director of a USCIS field office issued a notice of intent to deny Ankush’s I-130 petition on the ground that Mohit’s marriage to Miller had been fraudulent. Al- though Mohit and Miller had submitted “significant evidence of marital union,” the notice explained, that evidence was “impossible to reconcile” with the admissions of marriage fraud from both. The notice quoted in full Miller’s hand-written statement (which the agency characterized as sworn). The notice also acknowledged but rejected Mohit’s repudiation of his confession. USCIS invited the Sehgals to submit additional evidence to prove that Mohit’s marriage to Miller had been bona fide.

Mohit submitted an affidavit swearing that the marriage had been “real” and elaborating on his confession to the ICE agents. His admission of fraud, he attested, was given under duress:

I was in the custody of immigration officials who were threatening me with all kinds of things. They had me sign a statement without letting me read it first. They told me I had to sign it. In addition, I was in an accident shortly before I was taken into custody, and was on medication and had my hand in a cast. Despite the fact that I told the immigration officers both of these facts, they still kept me handcuffed, on my casted hand, and made me sign a statement without reading it.

The affidavit said nothing about torture or being held in a dark “stinking bathroom,” as Mohit had claimed during his March 2011 interview. Mohit submitted medical records showing that he had gone to a hospital emergency room complaining of pain from kidney stones five days before he was arrested and confessed. Also, Ankush submitted a letter offering her own assessment that Mohit would not commit fraud and had “genuine” intentions in marrying Miller.

Mohit’s allegations of coercion are too vague and inconsistent to undermine his confession of fraud. See Matter of Is- ber, 20 I. & N. Dec. at 679 (explaining that spouse’s “general claim of duress is insufficient to retract her detailed admissions as to the fraudulent nature of her marriage”). His two statements claiming coercion, made only weeks apart, were not even consistent with each other. In the first Mohit said he was “almost tortured,” but in the second he asserted only that

he was handcuffed despite his arm being in a cast. Mohit did not say how agents threatened him or say what the agents said during his interview. The agents could have “threatened” to do something entirely lawful. See Rajah v. Mukasey, 544 F.3d 427, 445 (2d Cir. 2008) (explaining that “threat of criminal sanctions for willfully failing to provide required regulatory information does not make providing the information coercive”).

Mohit submitted medical records showing he was in pain around the time of the interview. He has never disclosed what medication he was taking, nor did he submit an affidavit from his doctor or other medical evidence suggesting that the med- ication would have undermined the voluntariness of his confession. And Mohit’s remaining assertions are not the kind of “egregious” actions calling for suppression of evidence. See Gutierrez-Berdin, 618 F.3d at 652–53 (explaining that “self-serving affidavit” alleging “very minor physical abuse coupled with aggressive questioning” did not warrant suppression); Oliva-Ramos v. Attorney Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012) (listing factors relevant to egregiousness inquiry, including whether agents resorted to unreasonable shows of force or physical abuse).

Accordingly, the Seghals have not shown sufficient reason to discount either Mohit’s own confession of marriage fraud or Miller’s written corroboration. They have not shown that the agency decision was made without substantial sup- porting evidence.

The Sehgals also raise procedural objections to the agen- cy’s decision. They argue that USCIS violated one of its own regulations by not providing them with a copy of Miller’s handwritten letter during the administrative proceedings.

The regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agency from basing a determination of statutory eligibility on in- formation that has not been disclosed to the applicant or petitioner. We have stressed before that “the better procedure” is for agencies to “produce the statement in question,” Ghaly, 48 F.3d at 1435, and we are puzzled by USCIS’s continued failure to do so. See id. at 1437 (Posner, J., concurring) (describing refusal to provide statement as “inexplicable, offensive, and absurd, as well as contrary to the INS’s regulations”).

This point is especially relevant where, as in this case, the government has mischaracterized evidence with an error that would have been caught much earlier if the Sehgals had been allowed to see the evidence. But we also have recognized that a summary can suffice, see id. at 1434–35, and here USCIS provided more than the summary that we found in Ghaly was ad- equate. The notice USCIS sent to the couple repeated Miller’s handwritten statement verbatim, though as noted it did not show that her statement was not sworn.

Finally, the Sehgals contend that the Board erroneously ignored “egregious conduct” by USCIS. The agency had told the Sehgals that it forwarded their appeal to the Board when in fact it had not done so (and did not do so for another year after making that representation). This error and delay were also unfortunate, yet the Sehgals do not identify any regulation that USCIS violated, nor do they say how they were harmed by the agency’s error. Delay alone, we have explained, “does not constitute ‘affirmative misconduct’ on the part of the government.” Mudric v. Attorney Gen. of U.S., 469 F.3d 94, 99 (3d Cir. 2006); see INS v. Miranda, 459 U.S. 14, 19 (1982) (explaining that government’s failure to process appli- cation promptly “falls far short” of affirmative misconduct);see also Rajah, 544 F.3d at 445 (characterizing “[i]mpoliteness and slow service” as “unfortunate, but not uncommon, characteristics of many ordinary interactions with government agencies”).

To conclude, the agency had substantial evidence, in the form of Muhit Sehgal’s and Miller’s written confessions to marriage fraud, as well as the inconsistencies found in the original investigation of their marriage, to support the finding that Muhit had engaged in marriage fraud. He is therefore in- eligible for relief under the I-130 petition that Ankush filed on his behalf. The judgment of the district court is

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, I-485 Application to Register Permanent Residence or to Adjust Status, Marriage Fraud | Leave a comment

CA7 upholds finding of marriage fraud making adjustment applicant inadmissible and ineligible for adjustment of status

Record contained sufficient evidence to support IJ’s denial of alien’s application to become lawful permanent resident, where IJ found that alien’s marriage to U.S. citizen was sham. IJ’s finding was largely based on testimony that alien’s wife was in long-term relationship with another woman, that wife lived with said woman while purportedly being married to alien, and that investigators discovered that: (1) wife shared mailbox with other woman and confirmed that she had been separated from alien for two-year period; and (2) residence that alien claimed he shared with wife appeared to be unoccupied. Moreover, alien’s misrepresentation about his marriage made him inadmissible under section 1182(a)(6)(C)(i), and thus alien was ineligible for adjustment of status. Ct. further held that IJ could properly find that alien was not credible during hearing on his application.

Zyapkov, a Bulgarian citizen, entered the U.S. in 2002 with a visitor’s visa. His daughter had entered two years earlier and eventually obtained citizenship through the “diversity lottery,” 8 U.S.C. 1153(c). Three months after Zyapkov’s arrival, he married Gregory, a U.S. citizen. Gregory and, later, Zyapkov’s daughter filed Form I‐130 “immediate relative” petitions on his behalf. Gregory’s petition was pending in 2008 when DHS initiated removal proceedings accusing Zyapkov of overstaying his visa and working as a truck driver without authorization. USCIS denied Gregory’s petition based on a conclusion that the marriage to was a sham. Zyapkov unsuccessfully sought a continuance. The finding of marriage fraud would make Zyapkov inadmissible, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for permanent residency regardless of his daughter’s pending petition. The Board dismissed his appeal of the removal order. The following month, with his daughter’s approved I‐130 petition approved, Zyapkov successfully asked the Board to reopen. He sought to adjust his status to permanent resident. On remand the IJ conducted hearings, denied Zyapkov’s application to adjust his status, and denied relief from removal, based on inconsistencies in testimony about the marriage. The Board and the Seventh Circuit affirmed. Since Zyapkov is inadmissible, he is ineligible for adjustment of status; even assuming eligibility, there was no legal or constitutional error in the IJ’s exercise of discretion. Zyapkov v. Lynch, No. 15-2063 (7th Cir. 2016)

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ZYAPKOV v. Lynch, Court of Appeals, 7th Circuit 2016
NIKOLAY ZYAPKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2063

United States Court of Appeals, Seventh Circuit.
Argued December 16, 2015.
Decided March 29, 2016.

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Nikolay Zyapkov, a Bulgarian citizen, applied to become a lawful permanent resident based on his marriage to a U.S. citizen. An immigration judge denied that application in a decision upheld by the Board of Immigration Appeals. Zyapkov petitions for review of the Board’s decision, but we conclude that his challenges to that decision are without merit.

I. Background.

Zyapkov entered the United States in 2002 with a six-month visitor’s visa. His daughter and ex-wife had come to the United States two years earlier, and both eventually obtained citizenship through the “diversity lottery,” which allows randomly selected entrants from countries with low immigration rates to apply for permanent residency. See, generally, 8 U.S.C. § 1153(c); Nyaga v. Ashcroft, 323 F.3d 906, 907-09 (11th Cir. 2003). Three months after Zyapkov’s arrival, he married Juanita Gregory, a U.S. citizen.

From that point Zyapkov’s efforts to remain in the United States became tangled, as both Gregory and later his daughter (after becoming a citizen in February 2010) filed Form I-130 petitions on his behalf. An approved I-130 petition would have verified Zyapkov to be an immediate relative of Gregory or his daughter, see 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1), and thus allowed him to apply for permanent residency using a Form I-485, see 8 U.S.C. § 1255(a). Gregory’s I-130 petition was still pending in 2008 when the Department of Homeland Security served Zyapkov with a Notice to Appear in removal proceedings accusing him of overstaying his visitor’s visa and working as a long-haul truck driver without authorization. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i). Soon after that, Gregory’s I-130 petition was denied by United States Citizenship and Immigration Services (“USCIS”) because that agency’s investigators had concluded that Gregory’s marriage to Zyapkov was a sham intended to gain him immigration benefits. See id. § 1154(c)(2). Later, though, in September 2010, USCIS approved the daughter’s I-130 petition.

USCIS’s finding of marriage fraud relied heavily on its conclusion that Gregory was in a relationship, and sharing an apartment, with another woman while purportedly married to Zyapkov. Neighbors, as well as the woman’s brother, had confirmed the relationship to investigators, and the names of both women were on the mailbox at the apartment. Gregory also had contradicted herself about her marital status, first telling USCIS investigators that she and Zyapkov were separated and later saying in a written statement that the couple remained married but she stayed with the other woman when Zyapkov was on the road. Investigators had visited the address on Gregory’s state-issued identification card, where an owner of the house claimed that he was letting Zyapkov and Gregory live for free in several rooms because they were poor. Yet a neighbor who was shown photographs identified the woman seen at the house with Zyapkov as his ex-wife, not Gregory. And the investigators had noted that the rooms purportedly made available to Zyapkov and Gregory were being renovated and appeared to be unoccupied, e.g., the refrigerator and kitchen cabinets were empty, as were the bedroom closets.

After USCIS denied Gregory’s I-130 petition, Zyapkov sought a continuance of the removal proceedings in order to challenge that decision. His daughter’s I-130 petition had not yet been granted, and without an approved I-130 petition he could not take the next step of applying to adjust his status to permanent resident. More significantly, the finding of marriage fraud, if left unchallenged, would make Zyapkov statutorily inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i), and thus ineligible for permanent residency whether or not his daughter’s I-130 petition should be approved.

The immigration judge (“IJ”) denied the requested continuance and ordered Zyapkov removed. The Board dismissed his appeal in August 2010, which, by leaving the finding of marriage fraud undisturbed, might appear to have ended the matter. But the following month, with his daughter’s approved I-130 petition now in hand, Zyapkov asked the Board to reopen the removal proceedings and also filed a Form I-485 seeking to adjust his status to permanent resident. In December 2010 the Board granted the motion to reopen and instructed the IJ to determine Zyapkov’s “statutory eligibility and discretionary worthiness” to remain in the United States. The Board reasoned that the daughter’s approved I-130 petition appeared to make Zyapkov eligible for adjustment of status, though it said nothing about the finding of marriage fraud or the resulting bar to admissibility.

On remand the IJ conducted five hearings from December 2010 to January 2013 on Zyapkov’s application for adjustment of status. In opposing that application, the government relied on USCIS’s conclusion that Zyapkov had tried to gain immigration benefits by entering into a sham marriage with Gregory. Zyapkov countered with his own testimony that the marriage was genuine. Gregory is not a lesbian, he insisted, nor had they ever been separated. They lived together, Zyapkov explained, although working as a truck driver takes him out of town for long stretches. He and Gregory share bank accounts and credit cards, said Zyapkov, though mostly they pay for expenses in cash.

Gregory also testified, but she contradicted Zyapkov. She said they were separated from 2006 to 2008. She also explained that, when they first had met, she and Zyapkov communicated by using a computer to translate between English and Bulgarian. Because of his job, though, she sometimes would see him only two or three times a month. She denied being in a lesbian relationship.

Zyapkov’s daughter was available to testify, but instead his lawyer proffered that the daughter stood by her I-130 petition. The IJ questioned, though, how USCIS could have granted the daughter’s petition, except unwittingly, after denying Gregory’s I-130 petition because of marriage fraud.

The IJ denied Zyapkov’s application to adjust his status to permanent resident and also denied relief from removal. The IJ first pointed out the inconsistencies in Zyapkov’s and Gregory’s accounts about where they had lived and whether they had separated. The IJ acknowledged Zyapkov’s assertion that these inconsistencies could be explained by his frequent work-related absences, but the IJ found that explanation neither “convincing” nor “persuasive.” The IJ opined that Zyapkov had not explained “how he supports his wife and even where he keeps his income from his business” because the couple’s joint accounts showed minimal deposits. Based on the evidence, the IJ agreed with USCIS’s finding that Gregory’s marriage to Zyapkov was a sham. And that sham marriage coupled with Zyapkov’s false testimony, the IJ reasoned, meant that Zyapkov was inadmissible under § 1182(a)(6)(C)(i) and therefore ineligible to adjust his status.[1] As an alternative basis for denying relief, the IJ concluded that Zyapkov did not merit a favorable exercise of discretion even if eligible.

Zyapkov, through counsel, appealed the IJ’s decision but did not submit a brief. His notice of appeal to the Board says only that the IJ did not “adequately consider the basis” for adjustment of status because, in his view, the IJ put too much weight on his marriage and “unfairly punished” him for “an allegation of prior marriage fraud, without the examination of any of the Government’s witnesses who claimed knowledge of an alleged fraud.”

The Board dismissed the appeal, giving this explanation:

We will assume for purposes of the appeal that the Immigration Judge erred in finding marriage fraud pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c), and in deeming the respondent inadmissible under section 212(a)(6)(C)(i) of the Act [8 U.S.C. § 1182(a)(6)(C)(i)], and we will assume for purposes of the appeal that the respondent is statutorily eligible to adjust his status under section 245(a) of the Act [8 U.S.C. § 1255(a)]. We agree, however, with the Immigration Judge’s denial of the respondent’s applications for both adjustment of status and voluntary departure in the exercise of discretion.

Zyapkov’s removability—which he conceded because he overstayed his visitor’s visa as charged in the NTA—is separate from his burden to prove eligibility for an adjustment of status. See Matovski v. Gonzales, 492 F.3d 722, 737-39 (6th Cir. 2007).

The Board noted that it “weigh[ed] heavily against” Zyapkov “that his marriage has been deemed not bona fide” and concluded that he had “not presented sufficient positive equities” to outweigh that finding.

II. Analysis.

Zyapkov has petitioned for review, and the parties are in agreement that we review the IJ’s decision as supplemented by the Board. See Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010); Ssali v. Gonzales, 424 F.3d 556, 561 (7th Cir. 2005). On that understanding, we conclude that the Board, although skipping without explanation the question of Zyapkov’s eligibility to adjust status, left intact the IJ’s finding of inadmissibility under § 1182(a)(6)(C)(i)). The parties’ positions are vague but appear to be in line with our reading of the Board’s decision: The government says that the Board simply assumed that Zyapkov was eligible for adjustment of status, while Zyapkov directly challenges the IJ’s finding of ineligibility. We start with that question.

A. Zyapkov was ineligible for adjustment of status.

Section 1255(a) of Title 8 provides that an alien is eligible to seek adjustment of status only if admissible into the United States, but Zyapkov’s misrepresentations about his marriage would have made him inadmissible under § 1182(a)(6)(C)(i). Only after an alien has established eligibility to adjust his status does an IJ have discretion to grant that relief. Munoz-Avila v. Holder, 716 F.3d 976, 977-78 (7th Cir. 2013); Kimani v. Holder, 695 F.3d 666, 668 (7th Cir. 2012). The question of admissibility is important for Zyapkov, not only as it relates to his present eligibility to adjust his status, but also because a determination of inadmissibility under § 1182(a)(6)(C)(i) will permanently bar Zyapkov from readmission to the United States. See Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008); Singh v. Gonzales, 451 F.3d 400, 402-03 (6th Cir. 2006); Ymeri v. Ashcroft, 387 F.3d 12, 18 (1st Cir. 2004).

In most circumstances, it might be appropriate to bypass the question of admissibility—as the Board seems to have done here—and address only whether the IJ committed legal or constitutional error in exercising discretion to deny adjustment of status. See Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016); Darif v. Holder, 739 F.3d 329, 337 (7th Cir. 2014); Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006). But given the permanent bar to admission we address Zyapkov’s argument that his marriage to Gregory was not fraudulent. See I.N.S. v. Bagamasbad, 429 U.S. 24, 26-27 (1976); Patel v. I.N.S., 811 F.2d 377, 381 (7th Cir. 1987); Kirong v. Mukasey, 529 F.3d 800, 803 (8th Cir. 2008). And the IJ’s finding that Zyapkov is statutorily ineligible for adjustment is fully reviewable. See Hussain v. Mukasey, 518 F.3d 534, 536 (7th Cir. 2008); Parlak v. Holder, 578 F.3d 457, 462-63 (6th Cir. 2009).

Zyapkov argues that the IJ failed to make an independent determination based on the record and, instead, accepted the government’s version of events while ignoring his evidence that the marriage was bona fide. We disagree. The IJ permissibly accepted USCIS’s denial of Gregory’s I-130 petition as evidence that the couple’s marriage was fraudulent. See Antia-Perea v. Holder, 768 F.3d 647, 656-58 (7th Cir. 2014) (explaining that to be admissible evidence must be at least probative and reliable); Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013); Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). What’s more, the results of USCIS’s investigation was not the only evidence before the IJ: Both Zyapkov and Gregory testified, and the IJ pointed out that they could not agree about where they had lived and whether they had separated. Zyapkov ignores that the IJ found him not credible, and concluded that prolonged absences because of his work as a truck driver did not explain these inconsistencies, and further that Zyapkov had not explained how he supports his wife financially or where he deposits his income. Thus, substantial evidence supports the IJ’s finding that Zyapkov committed marriage fraud. See Surganova v. Holder, 612 F.3d 901, 903-04 (7th Cir. 2010) (explaining that finding of marriage fraud must be supported by record evidence that is reasonable, substantial, and probative); Vladimirov v. Lynch, 805 F.3d 955, 960-62 (10th Cir. 2015) (denying petition for review where substantial evidence of marriage fraud included inconsistent statements about relationship).

B. The IJ committed no legal error in denying adjustment of status.

Since Zyapkov is inadmissible, he is ineligible for adjustment of status. But even assuming eligibility, as the Board did, there was no legal or constitutional error in the IJ’s exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569-70 (7th Cir. 2006); Mele v. Lynch, 798 F.3d 30, 31-33 (1st Cir. 2015). Zyakpkov argues that he was denied due process because, in his view, the IJ “accorded an over-abundance of weight to the Government’s claims based on an alleged on-sight investigation.”

But there is no due process right to discretionary relief. Instead we review the legal sufficiency of the removal proceeding. See Darif, 739 F.3d at 335-36; Delgado v. Holder, 674 F.3d 759, 765-66 (7th Cir. 2012). Zyapkov contends that the proceeding was inadequate because the government did not call the investigators to testify about their determination that he committed marriage fraud. Thus, he says, he didn’t have opportunity to cross-examine the investigators and refute their conclusion. Yet Zyapkov was free to, but did not, seek approval from the IJ to subpoena the investigators himself. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b)(1), (2). And he points to no regulation requiring the government to call its investigators to testify. The burden was on Zyapkov to prove himself admissible and eligible for discretionary relief, as well as to present positive equities that would warrant a favorable exercise of discretion. See 8 C.F.R. § 1240.8(d); Dakura v. Holder, 772 F.3d 994, 998 (4th Cir. 2014) (alien carries burden for showing admissibility and eligibility); Matovski, 492 F.3d at 739 (alien carries burden of presenting positive equities). Zyapkov had multiple opportunities over two years to present evidence of his truthfulness— including six hearings before the IJ—but his evidence and testimony were unconvincing. See Ortiz-Estrada v. Holder, 757 F.3d 677, 679 (7th Cir. 2014) (explaining that alien challenging legality of removal hearing must show he was denied a reasonable opportunity to present evidence and that he was prejudiced); Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007) (same).

Accordingly, we DENY the petition for review.

[1] Although Zyapkov was not charged in the Notice to Appear with fraud under § 1182(a)(6)(C)(i), the IJ could rely on fraud as a ground of inadmissibility, and thus ineligibility to adjust status, because the question of

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud | Leave a comment

CA7 grants withholding of removal for citizen of Botswana and female genital mutilation (FGM) claim

Ct. of Appeals lacked jurisdiction to consider alien’s appeal of Bd.’s denial of her asylum application, where basis of denial was Bd.’s finding that said application was untimely as being filed more than one year after her arrival in U.S. and after her application for adjustment of status had been denied. IJ erred, though, in denying alien’s withholding of removal application based on her claim that her return to Botswana would subject her to female genital mutilation (FGM) since: (1) IJ credited alien’s claim that her family in Botswana had made two prior attempts to subject her to FGM; (2) IJ erred in placing too much emphasis on absence of background evidence confirming prior cases of FGM in Botswana at large; and (3) record was undeveloped with respect to alien’s ability to relocate to other areas of Botswana that would not place alien at risk of undergoing forced FGM.

Musa, a citizen of Botswana, entered the U.S. in 2008 on a visitor’s visa. She met a U.S. citizen and they married. Musa’s husband filed an I‐130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident, 8 U.S.C. 1151(b)(2)(A)(i), 1255(a); The Department of Homeland Security denied both: Musa’s husband was discovered not to have ended a previous marriage. In 2009 Musa was placed in removal proceedings because her visa had expired. In 2010, Musa divorced and applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo female genital mutilation. The agency denied relief. The Seventh Circuit granted the petition requesting withholding of removal. Substantial evidence did not support the agency’s conclusion that Musa likely will not be subjected to FGM. The court held that it lacked jurisdiction to review the agency’s determination that Musa’s asylum application was untimely and denied the petition with respect to the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM. Musa v. Lynch, No. 15-2046 (7th Cir. 2016)

___________________________
BATHUSI MUSA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2046.

United States Court of Appeals, Seventh Circuit.
Argued December 15, 2015.
Decided February 19, 2016.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Bathusi Musa, a citizen of Botswana, petitions for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture, all based on her fear that her family will force her to undergo female genital mutilation (FGM) if she returns. We grant the portion of the petition requesting withholding of removal. Substantial evidence does not support the agency’s conclusion that Musa likely will not be subjected to FGM. On the asylum application, however, we lack jurisdiction to review the agency’s determination that Musa’s asylum application was untimely. We must dismiss that portion. We also deny the portion of her petition seeking relief under the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM.

Musa entered the United States in April 2008 on a visitor’s visa. She met a United States citizen and they married. Musa’s husband filed an I-130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a); 8 C.F.R. § 245.2; In re Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009). In June 2009, however, the Department of Homeland Security denied the I-130 petition and Musa’s application to adjust status. The problem was that Musa’s husband was discovered not to have ended a previous marriage. In November 2009 Musa was placed in removal proceedings because her visa had expired while those applications were pending. In April 2010, Musa and her husband divorced.

In October 2010, Musa applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo FGM.[1] Musa, who belongs to the Kalanga tribe, said that her mother and grandmother hold strict traditional beliefs and think that if a woman does not undergo FGM her entire family will be cursed. Musa’s grandmother is, in Musa’s words, a “medicine woman” and has performed FGM on other women in the past.

When she lived in Botswana, Musa said, her family on two occasions tried unsuccessfully to force her to undergo the mutilation. On the first attempt, when she was 16, Musa was kidnapped by a group of women and brought to a place where other girls were undergoing FGM. She managed to escape through a bathroom window before the procedure could be carried out, and then—suspecting that her family had instigated the events—hid at a friend’s house. Musa’s mother eventually acknowledged the family’s involvement and promised not to force her to undergo the procedure, at which point Musa returned home.

The second attempt came a year later. Musa said she was attacked by several men who dragged her into some bushes and attempted to “circumcise” her. They told Musa that her mother had sent them. Musa was able to break away, but she sustained bruises all over her body. Musa did not report the incident to the police, she said, because everyone accepted that FGM was practiced and she believed the police would not take her accusation seriously. She also testified that she had two friends who had died from undergoing FGM in Botswana in 2004. Musa continued to live with her parents until later in 2004 or 2005 and then moved to another city in Botswana. Her parents were able to contact her over the phone, but Musa did not disclose her address.

More recently, since leaving Botswana, Musa said that her parents had found her a significantly older marriage partner (he is 75, Musa is now 30), who could help the family financially. To marry the older man, Musa says, she would have to undergo FGM. Her father, who used to resist having the procedure performed on her, wants her to go through with the marriage because he needs money from the suitor to help his struggling business. Musa is afraid to return to Botswana because she does not want to undergo FGM or marry this man.

Further testimony about FGM in Botswana was presented by one of Musa’s friends from Botswana, Gaomongwe Selawe said that FGM was practiced in Botswana as an initiation ritual for girls. She said that she had heard that FGM was practiced by some members of the Kalanga tribe. And she had friends who had undergone the procedure in Botswana. Selawe said that many women do not talk about being forced to undergo FGM because it is a private ritual.

The record before the immigration judge contained documentary evidence showing that FGM is not prevalent in Botswana. The 2011 State Department Country Report in Human Rights Practices for Botswana stated: “There were no known cases of physically harmful traditional practices, such as female genital mutilation.” According to UNICEF, FGM is “not widely practiced” in Botswana, though its report in 2005 nevertheless counted 3 million girls in Africa at risk of FGM each year. Finally, Musa attached a letter written by her mother imploring her to return to Botswana to marry the older man the family had found for her.

The immigration judge denied Musa’s application for asylum, withholding of removal, and Convention Against Torture relief. Musa was not eligible for asylum, the judge found, because she had not filed a timely application within one year of her arrival in the United States. The judge also found that neither her marriage to nor divorce from her husband was a changed circumstance justifying her delay. And even if the denial of her application for adjustment of status in June 2009 was a changed circumstance, the judge found, Musa waited an unreasonably long time from that date— more than a year—to file for asylum.

The judge denied Musa’s request for withholding of removal because he determined there was not a clear probability that if she returned to Botswana she would be subjected to FGM. The judge believed Musa’s testimony that her family practices FGM and on two occasions had attempted to subject her to it forcibly. The judge concluded, however, that those incidents did not amount to past persecution because Musa had not actually undergone the procedure. The judge also believed Musa’s testimony that she feared returning to Botswana, but he did not regard her fear as reasonable because there was no evidence in the record showing that FGM was practiced at all, let alone practiced widely in Botswana. The judge noted Musa’s admission that her desire to avoid a marriage to a much older man was the principal reason she did not want to return to Botswana, not her fear of FGM.

Finally, the immigration judge denied Musa’s request for protection under the Convention Against Torture because she had not presented any evidence showing that the government in Botswana would torture her or acquiesce to torture by anyone else.

The Board of Immigration Appeals affirmed the immigration judge’s decision. The Board agreed with the judge’s conclusion that Musa’s asylum application was untimely because her marriage and divorce were neither changed nor extraordinary circumstances and she did not file the application in a reasonable amount of time after the denial of her petition for adjustment of status. The Board then explained that it agreed with the judge’s denial of Musa’s withholding and Convention Against Torture claims because she “has not been able to provide objective evidence of country conditions in Botswana that corroborates her stated fear of FGM.” The Board agreed with the judge that Musa’s testimony was credible, but it supplemented the judge’s reasoning by proposing that Musa could relocate to a different part of the country: “in view of the paucity of FGM occurring in Botswana, and especially in view of the fact that the respondent need not return specifically to her hometown, we cannot conclude that the Immigration Judge clearly erred in concluding that the respondent did not show that . . . persecution or torture—such as FGM—is likely to occur.”

Musa leads off her petition for judicial review with a weak challenge to the agency’s determination that she did not show changed circumstances materially affecting her eligibility for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). She recognizes that we lack jurisdiction to review such a determination absent a related legal or constitutional argument, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013); Restrepo v. Holder, 610 F.3d 962, 964-65 (7th Cir. 2010), so she tries to frame her disagreement with the agency as a legal issue. She disagrees with the Board’s conclusions that her marriage and divorce did not constitute changed or extraordinary circumstances, and that it was unreasonable for her to have waited more than a year to apply for asylum after the denial of her application for adjustment of status.

Those disagreements do not raise a justiciable legal question challenging the basis of the agency’s determination. She disputes only the application of the law to her circumstance, not the governing legal rules. We thus lack jurisdiction to review the denial of her asylum application. See Restrepo, 610 F.3d at 964-65; Viracacha v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008).

Musa next argues that substantial evidence does not support the denial of her application for withholding of removal because the judge wrongly disregarded her testimony about her family’s FGM practice—testimony that he explicitly credited. We agree. The fact that FGM is not widespread in Botswana as a whole does not contradict her statements about her family’s practice.

We have held consistently that FGM is a form of persecution. See Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004); Olowo v. Ashcroft, 368 F.3d 692, 702-03 (7th Cir. 2004); see also In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA 1996). Still, Musa bears a high burden to establish eligibility for withholding of removal: she must show a clear probability of persecution if removed to Botswana. See Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010); Guardia v. Mukasey, 526 F.3d 968, 971 (7th Cir. 2008); 8 C.F.R. § 1208.16(b)(2). A clear probability means it appears more likely than not that she will suffer persecution if removed. Bitsin v. Holder, 719 F.3d 619, 628 (7th Cir. 2013); see Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); 8 C.F.R. § 1208.16(b)(2).

The immigration judge here erred by placing too much weight on the absence of background evidence confirming prior cases of FGM in Botswana at large. The absence of documented cases of FGM in that country does not contradict Musa’s testimony—testimony that the judge explicitly credited—that her family practiced FGM. The judge found that Musa testified credibly that her family practiced FGM, that they had twice attempted to force her to undergo it, and that her family—including her father, who once opposed subjecting her to the practice—now wants her to enter into a marriage conditioned upon her undergoing it.

Whether FGM is widely practiced in Botswana or not has no bearing on whether Musa’s own family is likely to subject her to it. The judge credited Musa’s testimony about her family’s FGM practice. He erred by failing to acknowledge the likelihood that she will be subjected to FGM upon returning to Botswana and acceding to the marriage. Musa’s credible testimony is sufficient to sustain her burden of proof. Neither the judge nor the Board denied Musa’s claim based on a lack of corroboration under the Real ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). (Under that act, an immigration judge may require an applicant who testifies credibly to provide reliable corroborating evidence as well. See Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014).)

The judge also erred by characterizing Musa’s principal motivation for seeking withholding of removal as her fear of marrying a much older man rather than fear of FGM. Once the judge accepts an applicant’s testimony about fear of persecution as genuine, the existence of other fears does not undermine her claim. See Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir. 2005) (“an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act”).

The Board’s conclusion that Musa could safely relocate to another part of the country is also problematic. The immigration judge did not address whether Musa could relocate to a different part of Botswana to avoid her family’s pressure to undergo FGM, or whether she could reasonably be expected to do so. See 8 C.F.R. § 1208.16(b)(2). The possibility of relocation, for that matter, was not even argued by the government before the Board.

As an initial matter, it is not clear that the Board has the authority to make a finding in the first instance that Musa could relocate. See 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge . . . shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”). Even if the Board were permitted to determine the relocation issue in the first instance, its cursory declaration about the feasibility of relocation gave no rationale. The Board did not address whether Musa’s ability to relocate safely might be compromised in light of her testimony that she now faces greater danger because of her family’s marital arrangements and her father’s apparent change of heart regarding his prior opposition to her undergoing FGM. “`[I]t seems possible . . . that the agency might be compelled to reach the opposite conclusion depending how it evaluates the record after remand.'” Kone v. Holder, 620 F.3d 760, 764 (7th Cir. 2010), quoting Gomes v. Gonzalez, 473 F.3d 746, 752 (7th Cir. 2007).

We add that the agency has waived any argument about denying withholding based on Musa’s failure to provide evidence of government involvement or acquiescence in the practice of FGM in Botswana. Neither the immigration judge nor the Board relied on that ground as a basis to deny withholding. See SEC v. Chenery, 318 U.S. 80, 87-88 (1943); Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).

Although we vacate and remand the decision regarding withholding of removal, we agree with the Board that Musa is not entitled to relief under the Convention Against Torture. The implementing regulations define torture as “severe pain or suffering . . . inflicted by or at the instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. § 208.18. Female genital mutilation is torture, of course. But the judge did not err by finding that Musa failed to show that torture is likely to be carried out by or with the acquiescence of the government in Botswana. See Khan v. Holder, 766 F.3d 689, 698 (7th Cir. 2014); Ishitiaq v. Holder, 578 F.3d 712, 718 n.3 (7th Cir. 2009); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The judge justifiably discounted Selawe’s testimony and was unswayed by Musa’s, and Musa has not pointed to evidence in the record to substantiate her testimony that the government would have permitted her family to subject her to FGM even if she had reported their attempts in 2002 and 2003.

Accordingly, the portion of the petition relating to Musa’s request for asylum is DISMISSED, the portion of the petition relating to withholding of removal is GRANTED, and the portion of the petition relating to protection under the Convention Against Torture is DENIED. The case is remanded to the Board of Immigration Appeals.

[1] FGM is defined by the World Health Organization as a collection of “procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” See Female Genital Mutilation, World Health Organization, http://www.who.int/mediacentre/factsheets/fs241/en/.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, female genital mutilation (FGM), withholding of removal | Leave a comment

CA7 dismissed petition for review as it lacks jurisdiction to review agency’s discretionary decisions

Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the U.S. as a refugee in 2003 and received permanent residence status in 2005, but was ordered removed on the ground that he obtained that status by fraud. He concedes committing fraud, which authorized his removal, 8 U.S.C. 1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. An Immigration Judge rejected that request on grounds that Dragana would not suffer extreme hardship and that, even if she would suffer hardship, his history of lying to immigration officials justified the exercise of discretion against relief. The IJ also discussed whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible, but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals affirmed. The Seventh Circuit dismissed his petition for review, noting that it lacks jurisdiction to review the agency’s discretionary decisions and that either ground was sufficient to support removal. Jankovic v. Lynch, No. 15-2144 (7th Cir. 2016)

_________________________________________________
JANKO BRANKO JANKOVIC, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2144.

United States Court of Appeals, Seventh Circuit.
Argued December 9, 2015.
Decided February 3, 2016.

Before EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.[*]

EASTERBROOK, Circuit Judge.

Janko Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the United States as a refugee in 2003 but has been ordered removed on the ground that he obtained that status by fraud. He had received permanent-residence status in 2005, but the fraud (which Jankovic concedes committing) authorized his removal. See 8 U.S.C. §1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. See 8 U.S.C. §1182(i).

An Immigration Judge rejected that request on two grounds: that Dragana would not suffer extreme hardship; and that, even if his wife would suffer hardship, his history of lying to immigration officials (the fraud used to obtain entry is just part of a pattern) leads to the exercise of discretion against relief. The IJ also discussed a third issue — whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible under a proviso to 8 U.S.C. §1101(a)(42); see also Presidential Proclamation No. 8697 §1(b), 76 Fed. Reg. 49277 (Aug. 4, 2011) — but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals approved this decision.

Jankovic cannot prevail in this court without upsetting both of the IJ’s grounds, for either of them is adequate to support removal. Yet his brief ignores the second ground, and what’s more we lack jurisdiction to review the agency’s discretionary decisions, which puts both rationales off limits. 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B)(i). See, e.g., Jiménez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).

Nonetheless, Jankovic maintains that we should review the issue that the IJ did not decide: whether he committed war crimes. Admissibility usually is a legal issue, and §1252(a)(2)(D) permits courts to review the agency’s legal conclusions. For that kind of review to be permissible, however, the legal conclusion must make a difference, as otherwise the court would be rendering an advisory opinion. Legal issues cannot be reviewed when there is only one judgment, and a discretionary decision supports that judgment no matter the answer to the legal contentions. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 235-36 (2007). Given the IJ’s two rationales, the admissibility question does not matter to the outcome. Jankovic’s contention that something special about immigration law requires a court to review all legal issues, even when a non-reviewable discretionary judgment controls the outcome, is incompatible with INS v. Bagamasbad, 429 U.S. 24 (1976), which held that a court or agency need not resolve a legal contention that does not affect the outcome.

Jankovic presents a second line of argument that he says is within our authority under §1252(a)(2)(D). He contends that the IJ erred by receiving the expert testimony of Michael MacQueen even though the agency had not furnished him, before the hearing, with a written narrative describing MacQueen’s conclusions. Jankovic appears to contend that MacQueen’s testimony affected all of the IJ’s rationales, which if so would avoid any risk of the court’s rendering an advisory opinion, but as far as we can tell MacQueen’s testimony concerned only the agency’s contention that Jankovic committed war crimes. MacQueen testified as an expert on the Bosnian War and, in particular, on the activities of the brigade in which Jankovic was a sergeant. MacQueen’s testimony does not concern how Jankovic’s removal would affect his wife or whether his habit of lying affects his suitability for favorable treatment. This means that any error in receiving MacQueen’s testimony did not matter to the outcome.

Let us assume that this is wrong, however. Still Jankovic cannot prevail, because he does not identify any statute, rule, or decision by the BIA that requires a pre-hearing written summary of proposed expert testimony. The Constitution does not compel pretrial discovery even in criminal litigation. Weatherford v. Bursey, 429 U.S. 545 (1977). Federal rules do require summaries of expert testimony in both civil and criminal litigation, see Fed. R. Civ. P. 26(a)(2); Fed. R. Crim. P. 16(a)(1)(G), but those rules do not apply to administrative hearings.

Although no rule with legal effect requires pre-hearing disclosures, the Immigration Court Practice Manual §3.3(g) urges litigants to include written summaries with witness lists, in order to reduce risk that the IJ will need to grant a continuance to allow additional preparation. The agency’s counsel listed MacQueen as a potential witness, with this description: “Mr. Macqueen is expected to testify regarding the respondent’s service in the Republika Srpska Special Police Brigade.” Jankovic thinks this inadequate. More than a year before the hearing, Jankovic’s lawyer asked the IJ to exclude MacQueen’s proposed testimony and for permission to present a rebuttal expert. The IJ denied the former motion but granted him leave to present a rebuttal expert. Shortly before the hearing, the agency’s lawyer orally described MacQueen’s planned testimony, and Jankovic said on the record that this proffer satisfied his concerns. After MacQueen testified, Jankovic did not put on a rebuttal witness or request a continuance to allow additional time for that purpose. That failure, coupled with his concession that the oral description sufficed, likely waives his current line of argument, see Skorusa v. Gonzales, 482 F.3d 939, 942 (7th Cir. 2007), but even if it doesn’t we’ve explained why the argument does not carry the day.

The petition for review is dismissed for want of jurisdiction.

[*] Of the Northern District of Illinois, sitting by designation.

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April 2016 Visa Bulletin

Visa Bulletin For April 2016

Number 91
Volume IX
Washington, D.C

View as Printer Friendly PDF

 

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during April for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo.

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: 

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  APPLICATION FINAL ACTION DATES FOR
     FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 22SEP08 22SEP08  22SEP08 22JAN95 01JUL04
F2A 22OCT14 22OCT14 22OCT14 22JUL14 22OCT14
F2B 15JUN09 15JUN09 15JUN09 08SEP95  01APR05
F3 22NOV04 22NOV04 22NOV04 01OCT94 22DEC93
F4 22JUL03 22JUL03 22JUL03 08APR97 01SEP92

*NOTE: For April, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 22JUL14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUL14 and earlier than 22OCT14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS. 

Family-
Sponsored
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES
F1 01OCT09 01OCT09 01OCT09 01APR95 01SEP05
F2A 15JUN15 15JUN15 15JUN15 15JUN15 15JUN15
F2B 15DEC10 15DEC10 15DEC10 01APR96 01MAY05
F3 01AUG05 01AUG05 01AUG05 01MAY95 01AUG95
F4 01MAY04 01MAY04 01MAY04 01JUN98 01JAN93

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  APPLICATION FINAL ACTION DATES FOR
     EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01SEP12 08NOV08 C C
3rd 15FEB16 15AUG13 08AUG04 15FEB16 01MAY08
Other Workers 15FEB16 01MAR07 08AUG04 15FEB16 01MAY08
4th C C C C C
Certain Religious Workers C C C C C

5th
Non-Regional
Center
(C5 and T5)

C 01FEB14 C C C

5th
Regional
Center
(I5 and R5)

C 01FEB14 C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. 
 

Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JUN13 01JUL09 C C
3rd C 01MAY15 01JUL05 C 01JAN10
Other Workers C 01AUG07 01JUL05 C 01JAN10
4th C C C C C
Certain Religious
Workers
C C C C C
5th Non-Regional
Center (C5 and T5)
C 01MAY15 C C C
5th Regional Center
(I5 and R5)
C 01MAY15 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF APRIL

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 23,800  
ASIA 5,800

Except:
Nepal:      5,100

EUROPE 24,500  
NORTH AMERICA (BAHAMAS) 6  
OCEANIA 950  
SOUTH AMERICA,
and the CARIBBEAN
925  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN MAY

For May, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
 

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 28,300  
ASIA 6,850 Except:
Nepal:      5,525
EUROPE 28,000  
NORTH AMERICA (BAHAMAS) 6  
OCEANIA 1,050  
SOUTH AMERICA,
and the CARIBBEAN
1,020  

D.  ANNOUNCING NVC’S EMPLOYMENT-BASED FIFTH PREFERENCE
     (EB-5) INVESTOR ASSISTANCE DESK

Those with questions related to an approved I-526 petition can now correspond with the National Visa Center (NVC) using a dedicated e-mail address: NVCeb5@state.gov. The newly created EB-5 Investor Assistance Desk is part of NVC’s continuing efforts to improve customer service.

Upon receipt of an approved petition from U.S. Citizenship and Immigration Services, NVC’s Investor Assistant Desk will oversee the addition of potential derivative applicants and creation of fee bills. Customers will e-mail their derivative’s relationship documents to NVCeb5@state.gov, which can also be used for inquiries on derivatives, the Child Status Protection Act, and general case status.

The Investor Assistance Desk does not change NVC’s process for documentarily qualifying an immigrant visa case and scheduling an interview overseas. All visa applicants, including those in the EB-5 category, should submit their financial, civil, and supporting documents to NVC in one package following the instructions available at: nvc.state.gov/submit. The goal of NVC’s Investor Assistance Desk is to provide more transparent and effective customer service through a team specially trained in the I-526 petition.

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   March 9, 2016

   
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