Kinisu v. Holder ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2444
EMMANUEL MITATI KINISU,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Kevin R. Murphy on brief for petitioner.
Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Stuart F. Delery, Principal
Deputy Assistant Attorney General, and James E. Grimes, Senior
Litigation Counsel, on brief for respondent.
August 1, 2013
LYNCH, Chief Judge. Emmanuel Kinisu, a native and
citizen of Kenya, petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the ruling of an Immigration
Judge (IJ). The IJ ruled that Kinisu had not met the standard for
waiver of the usual requirement of filing a joint petition with a
spouse in order to remove the conditions from his conditional
permanent residency. Before the IJ, Kinisu, who did not file
jointly with his ex-wife, had argued that he was entitled to
removal of the conditions based on his marriage to an American
citizen, despite the fact that the marriage had ended in divorce.
This argument required proof that the marriage had been entered
into in good faith, a burden that the IJ found Kinisu failed to
meet. Accordingly, the IJ determined that his resident status had
been terminated and ordered his removal from the United States,
subject to voluntary departure. The BIA adopted and affirmed the
IJ's decision.
In his petition to this court, Kinisu argues that the IJ
evaluated his request for removal of conditions under an erroneous
legal standard and that the IJ gave insufficient weight to Kinisu's
testimony. The first argument was not raised before the BIA, and
so we have no jurisdiction to address it. The second argument
fails on its merits. We deny the petition.
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I.
We begin by briefly reviewing the immigration statute's
scheme governing marriage between an alien and a citizen. An alien
who has been married to a U.S. citizen for fewer than 24 months may
obtain an adjustment of his immigration status to that of a
"conditional" permanent resident. See 8 U.S.C. § 1186a(a)(1),
(h)(1). Generally, in order to remove the conditional status from
the alien spouse's residency, the spouses must jointly submit a
Form I-751 petition for removal of conditions and then participate
in a joint personal interview. See id. § 1186a(c)(1). The
petition must be filed within the 90-day period preceding the
second anniversary of the status adjustment. Id. § 1186a(d)(2).
However, if the alien spouse is unable to meet the joint
petition and interview requirements -- for instance, because the
marriage has ended in divorce -- then he may apply for a waiver of
those requirements. Id. § 1186a(c)(4)(B). In order to qualify for
a waiver, the alien spouse must show that, inter alia, "the
qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated (other than
through the death of the spouse) and the alien was not at fault in
failing to meet the [joint filing] requirements." Id.; see 8
C.F.R. §§ 216.4(a)(1), 216.5(a).
Applicable regulations provide that all Form I-751
petitions "shall be accompanied by evidence that the marriage was
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not entered into for the purpose of evading the immigration laws of
the United States." 8 C.F.R. § 216.4(a)(5). This evidence "may
include":
(I) Documentation showing joint ownership of
property;
(ii) Lease showing joint tenancy of a common
residence;
(iii) Documentation showing commingling of
financial resources;
(iv) Birth certificates of children born to
the marriage;
(v) Affidavits of third parties having
knowledge of the bona fides of the marital
relationship, or
(vi) Other documentation establishing that the
marriage was not entered into in order to
evade the immigration laws of the United
States.
Id.; see also 8 C.F.R. § 216.5(e)(2) (providing that, in
considering an application for waiver of the joint filing
requirements, the agency "shall consider evidence relating to the
amount of commitment by both parties to the marital relationship").
II.
Kinisu came to the United States in May 1992 on a B-1
visa. According to his testimony before the IJ, he met Theresa
Johnson, a United States citizen, in 2000, and they dated for
approximately two years. On October 9, 2002, Kinisu and Johnson
were married. Approximately a year later, on October 23, 2003,
Kinisu obtained an adjustment of his status to that of a
conditional permanent resident. The couple remained together until
October 2005, when, according to Kinisu, Johnson left the marital
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home. They obtained a final judgment of divorce on December 28,
2006.
In June 2008, Kinisu filed a Form I-751 petition to
remove the conditions on his residency, which included a request
for waiver of the requirement that the petition be filed jointly
with his spouse. The United States Citizenship and Immigration
Services (USCIS) conducted an interview with Kinisu on May 12,
2009, at which Kinisu gave testimony and submitted documents to
support his claim that he had entered into his marriage with
Johnson in good faith. At the interview, Kinisu provided a tenancy
at will agreement purporting to show his cohabitation with Johnson,
a letter from his property manager to the same effect, three bank
statements from a joint checking account, various tax and
employment-related documents, and photographs of the wedding.
On August 6, 2010, USCIS denied Kinisu's petition. The
agency found that the documents Kinisu had provided did not support
his claim that the marriage had been in good faith. It noted,
among other things, multiple discrepancies in Johnson's listed
addresses on her W-2s; inconsistencies in the property manager's
letter; the absence of tax transcripts to show that purported
"married filing jointly" returns had actually been filed with the
IRS; the absence of evidence of significantly commingled funds or
joint assets; and the absence of photographs post-dating the
wedding. The agency also commented on Kinisu's failure to provide
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any documentary evidence to show that he and Johnson participated
in their local community as a married couple or that they "were
creating a social or family relationship."
As a result of these findings, USCIS denied Kinisu's
petition to remove the conditions on his residency and,
accordingly, deemed his permanent resident status terminated as of
July 28, 2006. The decision was not appealable, but the decision
letter explained that Kinisu could request a review of the decision
in removal proceedings. See 8 C.F.R. § 216.5(f).
On the same day that USCIS issued its decision letter,
Immigration and Customs Enforcement issued a Notice to Appear to
Kinisu, charging him with being removable from the United States as
an alien lawfully admitted for permanent residence whose status had
been terminated. In his responsive pleading, Kinisu conceded
removability but requested relief in the form of a review of his
petition for removal of conditions. In the alternative, he
requested voluntary departure.
On June 13, 2011, the IJ held a hearing, at which Kinisu
was the only witness. The IJ also reviewed the documents that
Kinisu had submitted to USCIS. Kinisu testified at the hearing
that, in July 2002, Johnson had moved into the apartment he rented,
and they lived there together until their separation. However,
Kinisu did not produce any leases from 2002, 2003, or 2004 showing
that Johnson was a tenant at the apartment, allegedly because the
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building was changing hands and the landlords did not want to give
leases. Kinisu's only direct evidence of cohabitation was the
tenancy at will agreement, dated May 1, 2005, which listed Kinisu
as the tenant on the first page and only included Johnson's name on
the last page, handwritten, with the notation "tenant." He also
pointed to the unsworn letter from the property manager stating
that Kinisu lived with Johnson at the apartment from July 2002
through October 2006. But Kinisu admitted on cross-examination
that the letter was incorrect in at least one respect: Johnson had
moved out of the apartment in October 2005, a year earlier than the
ending date in the letter.
Kinisu testified that he and Johnson maintained separate
bank accounts during the marriage but also opened a joint checking
account. He claimed that he stopped putting money into the joint
account when he realized how fast Johnson spent the money.
Although Kinisu stated that the account was open from June 2002
through October 2006, he provided only three account statements --
from March, June, and July 2005 -- each of which showed minimal
account activity. The couple had no other joint assets and
maintained separate auto and health insurance policies.
Kinisu stated that he and Johnson began having problems
in their marriage in 2003, primarily because Johnson was spending
much of her time caring for her mother, who had cancer. Johnson's
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mother died in April 2004, approximately a year and a half before
the couple separated.
After hearing Kinisu's testimony and reviewing the USCIS
documentary record and decision letter, the IJ issued an oral
decision in which she found that Kinisu had failed to meet his
burden of showing that his marriage had been in good faith. The IJ
first noted that Kinisu had failed to provide any affidavits from
third parties who could vouch for the bona fides of the marriage,
see 8 C.F.R. § 216.4(a)(5)(v), including from Kinisu's own brother,
who had lived in the United States during the marriage and knew
Johnson. She then described the deficiencies in the documentary
evidence that Kinisu had produced, including the limited bank
account statements and the absence of joint leases for the alleged
marital residence. Finally, the IJ questioned Kinisu's statement
that the marriage deteriorated because of Johnson's mother's
illness, since the mother had died long before the couple
separated. Given these facts, the IJ concluded that Kinisu's Form
I-751 petition had to be denied; she did, however, grant Kinisu
voluntary departure.
Kinisu appealed the IJ's decision to the BIA. In his
brief in support of the appeal, Kinisu argued that the IJ had given
insufficient weight to his testimony and too much weight to the
lack of documentary evidence. The BIA issued its decision on
November 6, 2012, "adopt[ing] and affirm[ing]" the IJ's decision
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"for the reasons set forth" therein. The BIA did not perform its
own analysis separate from reciting the IJ's findings.
III.
This court has jurisdiction to review a final order of
removal only if "the alien has exhausted all administrative
remedies available to the alien as of right." 8 U.S.C.
§ 1252(d)(1). Where we have jurisdiction, we generally review the
decision of the BIA, but when the BIA adopts the decision of the
IJ, we review the IJ's decision directly. Chhay v. Mukasey, 540
F.3d 1, 5 (1st Cir. 2008); Albathani v. INS, 318 F.3d 365, 373 (1st
Cir. 2003).
We review the IJ's factual findings using the
"substantial evidence" standard, Yatskin v. INS, 255 F.3d 5, 9 (1st
Cir. 2001), a "quite deferential" standard of review under which we
will treat the IJ's findings as "conclusive if 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Mediouni v. INS, 314 F.3d 24, 27 (1st
Cir. 2002) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). The credibility of a witness is a factual question.
McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).
We will not reverse an IJ's findings of fact unless the record
evidence would "compel a reasonable factfinder to reach a contrary
determination." Chhay, 540 F.3d at 5.
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It was Kinisu's burden to prove that his marriage had
been entered into in good faith. McKenzie-Francisco, 662 F.3d at
586-87. Kinisu's first argument to this court is that the IJ
applied an erroneous legal standard in determining whether he met
this burden. Specifically, he argues that the IJ treated third-
party affidavits attesting to the bona fides of the marriage as
required under the applicable regulation, whereas in fact such
affidavits are one among a variety of documents that may be used to
prove the good faith of the marriage.
This argument was not raised before the BIA. The law of
this circuit is clear that, if a petitioner fails to press an
argument before the BIA, "the petitioner has not exhausted [his]
administrative remedies" as to that issue, which, "in turn,
forecloses this court from exercising jurisdiction over [the
issue]." Chhay, 540 F.3d at 5-6 (citing Sunoto v. Gonzales, 504
F.3d 56, 59 (1st Cir. 2007); Makhoul v. Ashcroft, 387 F.3d 75, 80
(1st Cir. 2004)). We thus have no jurisdiction to address Kinisu's
first argument.
Kinisu also renews the argument that he did make before
the BIA: that the IJ did not give sufficient weight to his
testimony and gave undue weight to the deficiencies in the
documentary record.1 We have no trouble concluding that the IJ's
1
The government contends that Kinisu has waived this claim by
failing to develop his argument and failing to provide relevant
citations to the record. Because Kinisu's claim is easily resolved
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decision was supported by substantial evidence on the record as a
whole. First, Kinisu himself admits in his brief before this court
that "[t]he [IJ]'s focus on the lack of documentation is warranted
by the record in this case." Indeed, Kinisu produced very few
documents in support of his claims about the marriage, and the IJ
determined that the ones he did produce showed either dubious
support for those claims or no support at all. See, e.g.,
McKenzie-Francisco, 662 F.3d at 587 (finding substantial evidence
to support determination of lack of good faith where the record was
"lacking the type of memorabilia that marriages typically produce,"
including absence of "evidence that [the spouses'] finances were
commingled" other than two joint tax returns). Evidence supporting
the good faith of the marriage -- often in the form of documentary
evidence -- is a required factor in an application for removal of
conditions. See 8 C.F.R. § 216.4(a)(5).
Second, the IJ did consider Kinisu's testimony in her
decision, just not in a way that was ultimately favorable to him.
The IJ reasonably questioned Kinisu's failure to produce any
affidavits discussing the marital relationship in light of Kinisu's
admission that his brother had known the couple and would have been
able to provide an affidavit if Kinisu had asked for one. Kinisu
also testified that he had not asked his ex-wife for an affidavit
even though they were on cordial terms. He further testified that
on its merits, we do not address the waiver question.
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he had not asked any friends for affidavits because he thought
people in this country stay out of other people's business. The IJ
did not find these explanations convincing, nor did she find
Kinisu's explanation for the failure of his marriage convincing,
given the discrepancy between the dates when he claimed that
Johnson was caring for her ailing mother and the date of the
alleged breakdown of the marriage.
"Even if the explanation for an inconsistency is on its
face reasonable and consistent, that does not mean the explanation
is true or that the IJ must accept it. It also does not mean that
an IJ cannot evaluate a superficially reasonable explanation by
weighing its plausibility or assessing an applicant's credibility."
Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010). Here, after
considering Kinisu's testimony and the documents (and lack of
documents) allegedly supporting it, the IJ determined that Kinisu's
explanations for the shortcomings in his documentation were
unreasonable. It is clear that the IJ weighed the totality of the
evidence in determining that Kinisu did not meet his burden of
proving that he had entered into his marriage in good faith. The
many gaps in the documentary record, along with Kinisu's weak
explanations for them, provide substantial evidence supporting this
decision. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir. 2007)
("So long as the IJ has given reasoned consideration to the
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evidence as a whole, made supportable findings, and adequately
explained her reasoning, no more is exigible.").
The petition for review is denied.
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