Yamoah v. Holder ( 2016 )


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  •                 Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    No. 14-1307
    WILLIAM YAMOAH,
    Petitioner,
    v.
    LORETTA E. LYNCH,
    Attorney General of the United States,*
    Respondent.
    PETITION FOR REVIEW OF AN ORDER OF
    THE BOARD OF IMMIGRATION APPEALS
    Before
    Thompson, Lipez, and Kayatta,
    Circuit Judges.
    Joanna M. Golding and Trupti N. Patel & Associates on brief
    for petitioner.
    Stuart F. Delery, Assistant Attorney General, Civil Division,
    Terri J. Scadron, Assistant Director, Office of Immigration
    Litigation, and Kathryn L. DeAngelis, Trial Attorney, Office of
    Immigration Litigation, United States Department of Justice, on
    brief for respondent.
    May 6, 2016
    * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Loretta E. Lynch has been substituted for former
    Attorney General Eric H. Holder, Jr., as the respondent.
    LIPEZ, Circuit Judge.        Petitioner William Yamoah seeks
    review of a decision denying his application for adjustment of
    immigration    status   and   ordering     his   removal   to    Ghana.   An
    Immigration Judge ("IJ") denied Yamoah's application based on his
    statutory ineligibility for adjustment and, in the alternative, on
    discretionary grounds.1       The Board of Immigration Appeals ("BIA")
    affirmed the IJ's decision as a matter of discretion.                 Yamoah
    petitions for review of the decision.         We dismiss the petition for
    want of jurisdiction.
    I.
    In November 2007, William Yamoah, a citizen of Ghana,
    entered the United States on a one-month business visa and stayed
    beyond the authorized period. In July 2008, Yamoah married Tashani
    Sherrel Strother, whom he had met his first month in the country.
    Following the marriage, Yamoah filed an application to adjust his
    immigration status to that of a permanent resident based on
    Strother's visa petition for her new husband.                   See 8 U.S.C.
    § 1255(a).
    1 The IJ also denied Yamoah's request for voluntary departure
    based on ineligibility and, alternatively, as a matter of
    discretion. Yamoah appealed to the Board of Immigration Appeals
    ("BIA"), challenging the IJ's decision that he was ineligible both
    for adjustment of status and voluntary departure. The BIA affirmed
    the IJ's decision on both issues as a matter of discretion.
    Yamoah, however, has not asked this court to review the BIA's
    denial of his request for voluntary departure.
    - 2 -
    In July 2009, U.S. Citizenship and Immigration Services
    ("USCIS") denied Strother's petition to classify Yamoah as the
    spouse of a U.S. citizen due to discrepancies between Yamoah's and
    Strother's USCIS interview responses and Strother's subsequent
    failure     to   respond      in   a    timely    fashion     to    notice        of   these
    discrepancies.       The Department of Homeland Security ("DHS") then
    charged Yamoah with removability for remaining in the United States
    after his visa expired and issued Yamoah a Notice to Appear in
    Immigration Court.           See 8 U.S.C. § 1227(a)(1)(B).              Yamoah conceded
    removability      and    indicated        that    he     sought    an    adjustment        of
    immigration status or, in the alternative, voluntary departure.
    Before     removal   hearings          began,    Strother    filed      a    second      visa
    petition for Yamoah, which was approved in June 2011.
    At the March 2012 hearing to decide Yamoah's application
    for adjustment of status, Yamoah and Strother both testified.
    Their accounts differed with regard to Yamoah's presence at the
    birth of Strother's daughter, the reasons that the couple live
    apart, the source of Strother's rent payments, and time spent
    together.        Additionally, Strother testified that she received
    welfare benefits, that she had not told the welfare agency that
    she   is   married      to    avoid     losing    some    benefits,         and   that    she
    understood that failing to disclose her marriage is a crime.
    At the conclusion of the testimony, the IJ informed DHS
    and Yamoah that they could submit written closing statements, if
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    desired.         Yamoah submitted several items to the court, including
    a written closing statement and three affidavits: one from Strother
    and two of his own.2
    On May 1, 2012, the IJ denied Yamoah's application for
    adjustment of immigration status and ordered him removed to Ghana.
    Based on the "numerous inconsistencies" in Yamoah's and Strother's
    testimony, the IJ did not find either credible.              The IJ referenced
    the explanations (or lack thereof) provided in the post-hearing
    submissions with regard to every inconsistency discussed in the
    credibility determination.           Most significant, according to the IJ,
    were       the   conflicting   accounts     of   Yamoah's   whereabouts   during
    Strother's delivery of her daughter.
    After finding Yamoah ineligible for adjustment of status
    because he provided false testimony as to the bona fides of his
    marriage,        see   8   U.S.C.   §§   1182(a)(6)(C)(i),    1255(a),    the   IJ
    explained that even if Yamoah were eligible for adjustment, the
    court would deny his application as a matter of discretion.                     In
    making       this   alternative,     discretionary    determination,      the   IJ
    listed Yamoah's U.S. citizen wife and child, four-year residence
    2
    The statement and affidavits attempted to clarify certain
    issues and inconsistencies between Yamoah's and Strother's
    testimony. The affidavits describe how the two met, the events
    surrounding the birth of Strother's daughter, the division of funds
    within the household, and time spent together. Furthermore, in
    his first affidavit, Yamoah attests that he was unaware that
    Strother had committed a crime by not disclosing their marriage to
    the welfare agency.
    - 4 -
    in the United States, payment of taxes, history of employment, and
    nonexistent criminal record as positive factors.                          The IJ, however,
    found that Yamoah's failure to take post-hearing action to correct
    Strother's welfare fraud made him a knowing participant in the
    fraud.       This knowing participation, as well as the IJ's finding
    that Yamoah falsely testified about his marriage, led the IJ to
    decide that Yamoah's negative equities outweighed his positive
    equities,         which   justified       a     denial      of      Yamoah's      adjustment
    application on discretionary grounds.
    Yamoah appealed to the BIA on the basis that the IJ erred
    in finding Yamoah ineligible to adjust.                       The BIA did not address
    Yamoah's      eligibility,     but    it       affirmed       the    IJ's    discretionary
    decision to deny Yamoah's request for adjustment after assessing
    Yamoah's positive and negative equities.                      This timely petition for
    review followed.
    II.
    A.     Legal Framework
    The Attorney General may, at her discretion, adjust the
    status of an alien who has been admitted into the United States to
    that    of    a    permanent   resident         if    (1)     the    alien     applies   for
    adjustment, (2) "the alien is eligible to receive an immigrant
    visa    and       is   admissible    to       the    United      States     for    permanent
    residence," and (3) an immigrant visa is available to him when he
    files his application.              8 U.S.C. § 1255(a).                An alien may be
    - 5 -
    classified as inadmissible, and thus ineligible for adjustment
    under the second prong of § 1255(a), if "by fraud or willfully
    misrepresenting a material fact, [the alien] seeks to procure . . .
    a visa, other documentation, or admission into the United States
    or other benefit provided under" the Immigration and Nationality
    chapter of the U.S. Code.      
    Id. § 1182(a)(6)(C)(i).
    If, however, there are no admissibility obstacles and an
    alien in removal proceedings is deemed statutorily eligible, then
    the IJ, acting under the authority of the Attorney General,
    exercises discretion to determine whether to adjust.             See 
    id. § 1255(a).
         Unless the petitioner raises a colorable legal or
    constitutional claim, 
    id. § 1252(a)(2)(D),
    under the Immigration
    and Nationality Act ("INA"), the courts lack jurisdiction to review
    the discretionary decision on a § 1255 adjustment petition, 
    id. § 1252(a)(2)(B),
    (a)(2)(B)(i) ("[N]o court shall have jurisdiction
    to review . . . any judgment regarding the granting of relief under
    section . . . 1255 . . . ."); see Mele v. Lynch, 
    798 F.3d 30
    , 32
    (1st Cir. 2015) ("[W]e lack jurisdiction to review the purely
    discretionary decisions made under the . . . statutory sections
    identified     in   §   1252(a)(2)(B)(i).").   We,     of   course,   have
    jurisdiction to examine and determine whether we have jurisdiction
    under the statute.      See 
    Mele, 798 F.3d at 31
    –32.
    - 6 -
    B.   Scope of Review
    Where the BIA adopts or defers to "the IJ's reasons for
    denying [the petitioner's] claims, we review those portions of the
    IJ's decision as part of the final decision of the BIA."           Onikoyi
    v. Gonzales, 
    454 F.3d 1
    , 3 (1st Cir. 2006) (alteration in original)
    (quoting Hernandez-Barrera v. Ashcroft, 
    373 F.3d 9
    , 20 (1st Cir.
    2004)).    On   those   issues   where   the   BIA   does   not   adopt   or
    incorporate the IJ's opinion, we review the BIA's decision alone.
    See Sou v. Gonzales, 
    450 F.3d 1
    , 6 (1st Cir. 2006); Halo v.
    Gonzales, 
    419 F.3d 15
    , 18–20 (1st Cir. 2005); see also Yang v.
    U.S. Dep't of Justice, 
    426 F.3d 520
    , 522 (2d Cir. 2005) ("[W]e
    review the judgment of the IJ as modified by the BIA's decision—
    that is, minus the single argument for denying relief that was
    rejected by the BIA.").     As we discuss below, our review differs
    with respect to each of Yamoah's individual claims.
    C.   Analysis
    Yamoah's brief includes a plethora of grievances all
    under the heading of a due process violation.           These grievances
    reduce to three primary arguments: (1) the IJ erred when finding
    Yamoah ineligible for adjustment, based on a flawed credibility
    finding; (2) when making her discretionary decision, the IJ failed
    to allow additional testimony pertaining to Yamoah's participation
    in Strother's welfare fraud; and (3) the IJ failed to inform Yamoah
    of his eligibility for relief via an I-601 waiver.
    - 7 -
    1.   Ineligibility
    Yamoah appealed to the BIA on the ground that the IJ
    erred in finding him ineligible for adjustment of status.                   The
    BIA's decision neither addressed the matter of eligibility nor
    incorporated the IJ's discussion of the matter into its decision.
    Therefore, with respect to the eligibility decision, where the BIA
    did not incorporate or adopt the IJ's eligibility determination,
    we take the BIA's decision alone.         See 
    Halo, 419 F.3d at 18
    –19.
    Unlike   the   IJ,   the   BIA   did   not   first   find   Yamoah
    ineligible before going on to explain that, even if he were
    eligible, it would deny adjustment as a discretionary matter.               Nor
    did the BIA summarily affirm the IJ's well-reasoned ineligibility
    decision.3    Under normal circumstances, if the BIA's position is
    unclear, we would remand to ensure that, as the reviewing court,
    we can adequately evaluate the agency's final decision.                     See
    Gailius v. INS, 
    147 F.3d 34
    , 44 (1st Cir. 1998) ("'[A] reviewing
    3 The logical inference from the BIA's decision to forego
    discussion of eligibility and move directly to a denial of
    adjustment as a matter of discretion is that the BIA assumed, for
    argument's sake, Yamoah statutorily eligible for adjustment.
    After all, the discretionary decision would have been unnecessary
    unless the BIA at least assumed Yamoah eligible for adjustment.
    See Ruckbi v. INS, 
    159 F.3d 18
    , 19 (1st Cir. 1998) ("Once the alien
    has established threshold statutory eligibility, he must
    additionally demonstrate to the Attorney General's satisfaction
    that he merits relief in the exercise of discretion."). Our review
    has been complicated by the BIA's silence on eligibility and the
    government's similar failure to respond to Yamoah's arguments
    concerning the IJ's eligibility decision.
    - 8 -
    court . . . must judge the propriety of [administrative] action
    solely by the grounds invoked by the agency,' and 'that basis must
    be   set   forth    with   such   clarity   as   to   be   understandable.'"
    (omission and second alteration in original) (quoting SEC v.
    Chenery Corp., 
    332 U.S. 194
    , 196 (1947))).            Here, however, remand
    is unnecessary because, as we discuss below, the BIA denied
    Yamoah's application on an alternative, discretionary ground that
    we lack jurisdiction to review.        See 8 U.S.C. § 1252(a)(2)(B)(i).
    Where two alternative grounds for a decision exist, and we do not
    have jurisdiction to review one, "any opinion of ours reviewing
    the nondiscretionary ground could not affect the final order's
    validity and so would be advisory only."4         Zajanckauskas v. Holder,
    
    611 F.3d 87
    , 90 (1st Cir. 2010) (quoting Ekasinta v. Gonzales, 
    415 F.3d 1188
    , 1191 (10th Cir. 2005)).          We thus do not review Yamoah's
    eligibility claim.
    2.     The discretionary decision
    Yamoah argues that the IJ violated his due process rights
    by not giving him an opportunity to address his role in Strother's
    welfare fraud, which was referenced as a negative equity in the
    decisions of both the IJ and the BIA to deny adjustment as a matter
    4However, where an alternative, nondiscretionary ground forms
    the basis for the discretionary judgment, we may review the
    nondiscretionary ground. See Restrepo v. Holder, 
    676 F.3d 10
    , 16
    (1st Cir. 2012); see also Singh v. Gonzales, 
    468 F.3d 135
    , 138 (2d
    Cir. 2006).
    - 9 -
    of   discretion.          We    consider     the     two    discretionary       decisions
    together.    See 
    Restrepo, 676 F.3d at 15
    .
    As     stated       above,      the    INA     deprives      the    courts    of
    jurisdiction to review such discretionary decisions, unless the
    challenge    to     the     decision        involves       claims   that       either    are
    constitutional in nature or address questions of law. See 8 U.S.C.
    §    1252(a)(2)(B)(i),          (a)(2)(D).          Therefore,      to    complete       the
    jurisdictional       analysis,        we    must     determine      whether      Yamoah's
    challenge falls within this exception.
    Yamoah argues that the IJ did not give him an adequate
    opportunity to address his role in Strother's welfare fraud.                            Even
    putting     aside     the       invitation,        submission,        acceptance,        and
    consideration of a post-hearing statement and three affidavits
    from Yamoah and Strother, Yamoah does not explain what efforts he
    made to submit any additional evidence or the substance of such
    evidence.         Yamoah attempts to repackage the weighing of the
    equities by the IJ and BIA and the ultimate decision to deny his
    adjustment request as a due process violation.                             But we have
    previously held that "cloaking" or "[s]tyling" factual arguments
    as constitutional claims does not alone make them so.                            Ramirez-
    Matias v. Holder, 
    778 F.3d 322
    , 326 (1st Cir. 2015); Alvarado v.
    Holder,     
    743 F.3d 271
    ,   275     (1st       Cir.   2014).         Rather,     a
    constitutional claim must be colorable -- in other words, "at least
    potentially valid" -- to confer jurisdiction upon the courts.
    - 10 -
    
    Alvarado, 743 F.3d at 275
    .   Yamoah's claim ultimately takes issue
    with the weight assigned by the IJ, and later by the BIA, to
    Yamoah's role in Strother's welfare fraud.     This claim cannot be
    characterized as a colorable constitutional claim and therefore
    falls outside of our jurisdiction.5    See 
    Mele, 798 F.3d at 31
    –33.
    3.   The I-601 waiver
    Yamoah also asserts that the IJ failed to inform him
    that he could file an I-601 waiver application in support of his
    adjustment application, and he claims this failure violated his
    due process rights.6    Judicial review of a claim challenging a
    final removal order is appropriate only if all administrative
    remedies have first been exhausted.      8 U.S.C. § 1252(d)(1); see
    also, e.g., 
    Ramirez-Matias, 778 F.3d at 327
    .   Yamoah did not raise
    this issue in his appeal to the BIA and thus has not exhausted his
    claim. Moreover, no exceptions to the exhaustion requirement apply
    to Yamoah's claim of procedural error.      See Lima v. Holder, 
    758 F.3d 72
    , 81–82 (1st Cir. 2014).        As a result, we do not have
    5 To the extent that Yamoah also challenges the discretionary
    denial on the basis that he provided false testimony, the claim
    similarly fails.
    6 A Form I-601 is an application to waive a ground of
    inadmissibility, such as willful misrepresentation under 8 U.S.C.
    § 1182(a)(6)(C)(i), and thereby re-establish eligibility for a
    status adjustment.   See U.S. Citizenship & Immig. Servs., U.S.
    Dep't of Homeland Sec., OMB No. 1615-0029, Instructions for
    Application for Waiver of Grounds of Inadmissibility 1, 11 (May
    22, 2015).
    - 11 -
    jurisdiction to hear Yamoah's I-601 claim.7    See Mazariegos-Paiz
    v. Holder, 
    734 F.3d 57
    , 62 (1st Cir. 2013).
    III.
    For the foregoing reasons, the petition is dismissed.
    7 Even if Yamoah had exhausted his administrative remedies
    when raising this challenge, he could not demonstrate the prejudice
    he asserts from the IJ's alleged failure to advise him of the I-
    601 waiver, because the BIA ultimately rested its denial of his
    application for adjustment on discretionary grounds.
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