Bekir Sahin v. Attorney General United States ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1692
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BEKIR SAHIN,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-707-590)
Immigration Judge: Honorable Annie S. Garcy
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 10, 2017
Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges.
(Opinion Filed: November 30, 2017)
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OPINION*
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HARDIMAN, Circuit Judge.
Bekir Sahin petitions for review of an order of the Board of Immigration Appeals
(BIA). For the reasons that follow, we will deny his petition in part and dismiss in part.
I
A native of Turkey, Sahin married a U.S. citizen in 2002 and became a conditional
permanent resident a year later. Just four months into the marriage, Sahin’s wife suffered
a miscarriage, and she later filed for an annulment, alleging that Sahin’s “intention with
respect to the marriage was fraudulent” because he “entered the marriage solely for
purposes of attaining immigration benefits.” App. 154. In April 2004, the New Jersey
Superior Court annulled the marriage.
In 2006, the Department of Homeland Security (DHS) terminated Sahin’s status as
a conditional resident. Sahin then sought to remove the conditions on his lawful
permanent resident status under 8 U.S.C. § 1186a(c)(4)(B). Because he was no longer
married, however, Sahin had to seek a waiver of the requirement that he file a joint
petition with his spouse. And that waiver could be granted only if Sahin demonstrated
that his marriage had been in “good faith.” See id. DHS denied this good faith waiver
request, so Sahin proceeded before an Immigration Judge (IJ). After several delays
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
between 2010 and 2015, the IJ held a hearing and denied Sahin’s good faith waiver
request. In doing so, the IJ relied on the finding of the New Jersey Superior Court that
Sahin’s marriage was a sham (i.e., entered into only for immigration reasons) to hold that
Sahin failed to carry his burden. The BIA affirmed, finding “no clear error in [the IJ’s]
conclusion that [Sahin]’s intent, at the time of the marriage, was for an immigration
benefit and not to create a life together.” App. 5.
Sahin timely appealed.
II1
Under 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction to review discretionary
denials of relief like the good faith waiver Sahin requested. Urena-Tavarez v. Ashcroft,
367 F.3d 154, 161 (3d Cir. 2004). Recognizing this limitation, Sahin advances two
arguments he claims to be legal or constitutional such that we may exercise jurisdiction
under 8 U.S.C. § 1252(a)(2)(D). Specifically, Sahin argues that his due process rights
were violated and that the agency assigned him the wrong burden of proof. As we shall
explain, the first claim fails on the merits and we lack jurisdiction over the second claim.
1
The IJ had authority to consider the good faith waiver as a matter of discretion
under 8 U.S.C. § 1186a(c)(4)(B) and the BIA had appellate jurisdiction under 8 C.F.R.
§ 1003.1(b)(3). We generally review the BIA’s opinion as a final agency decision, but
where, as here, the BIA “invokes specific aspects of the IJ’s analysis and fact-finding,”
we review both decisions. Green v. Att’y Gen., 694 F.3d 503, 506 (3d Cir. 2012) (citation
omitted).
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A
Sahin claims that delays in his case deprived him of due process because his ex-
wife “was no longer willing and able” to testify on his behalf and because other friends
and potential witnesses have grown more distant. Sahin Br. 24. We are unpersuaded.
After Sahin exhausted his pursuit of a waiver with the DHS in 2009, his case
proceeded before the IJ. Sahin’s master calendar hearing was scheduled for February 9,
2010, but that hearing was adjourned at the request of Sahin’s counsel, who needed time
to prepare. At the rescheduled master calendar hearing, a date was set for the merits
hearing in 2011. Sahin’s attorney later filed a motion to continue, requesting that the
2011 merits hearing “be continued due to the unavailability of [Sahin’s] ex-wife.” App.
139. In response to this motion to continue, the IJ scheduled a master calendar hearing for
October 19, 2011, but the IJ missed the hearing when another matter ran late. At the
rescheduled master calendar hearing in February 2012, the IJ rescheduled the merits
hearing for April 2013 to permit Sahin’s ex-wife to testify. But that hearing was
postponed because a Turkish interpreter was not available. The IJ then rescheduled the
May 2014 hearing due to a family funeral. Sahin’s merits hearing was finally conducted
on October 9, 2015. Since Sahin requested two of the five major continuances, he cannot
credibly complain that those delays denied him due process.
As for the other three delays, they did not prejudice Sahin. See Delgado-
Sobalvarro v. Att’y Gen., 625 F.3d 782, 787–88 (3d Cir. 2010). The BIA rightly noted
that nothing prevented Sahin from subpoenaing his ex-wife or any other friend or family
4
member to testify at his 2015 hearing. Sahin argues that he suffered prejudice because his
ex-wife initially was willing to testify, but later declined to do so. Nevertheless, the IJ
still had access to an affidavit from Sahin’s ex-wife explaining that she “believed at the
time of [their] marriage that [they] loved one another and hoped [their] marriage would
endure.” App. 149. The IJ expressed skepticism about Sahin’s statement that his ex-wife
no longer wished to testify because “she did not want to be reminded of the past any
longer.” App. 12. But even had the IJ found that statement credible, Sahin’s ex-wife’s
intentions upon entering the marriage shed no light on whether Sahin married her to
establish a life or to obtain an immigration benefit.
As the IJ noted, Sahin presented only his testimony to rebut the findings of the
New Jersey Superior Court. And because Sahin has not demonstrated that the delays in
his hearing prevented him from presenting other relevant evidence, those delays did not
deny him due process of law.
Sahin also argues that the IJ violated due process by demonstrating bias against
him based on his religion, but he fails to point to any instance of bias in the record.
Before the BIA and this Court, Sahin alleged insensitivity to his religiously motivated
views on artificial insemination (something he claims was a point of contention with his
ex-wife). But the IJ did not dismiss the validity of those objections; she merely noted that
Sahin testified inconsistently in this regard. During his state court proceeding, Sahin
expressed total opposition to the procedure, but in his immigration proceedings he
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testified he was willing to pursue it. The IJ’s focus on these inconsistencies was neither
erroneous nor biased.2
B
We turn now to Sahin’s burden of proof argument. Sahin did not argue to the BIA
that the IJ failed to apply the preponderance of the evidence standard. Accordingly, we
lack jurisdiction over this unexhausted claim. Castro v. Att’y Gen., 671 F.3d 356, 365 (3d
Cir. 2012) (citing 8 U.S.C. § 1252(d)(1)). And the claim would have been without merit
in any event. Both the IJ and BIA clearly noted that Sahin was required to demonstrate
good faith by a preponderance of the evidence, and Sahin’s real objection here relates to
how the IJ weighed the evidence under that standard—an objection over which we also
lack jurisdiction. Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007).
* * *
For the reasons stated, we will deny Sahin’s petition for review in part and dismiss
it in part.
2
Sahin also argues for the first time on appeal that the IJ was biased against him
because of his weak command of English. We lack jurisdiction over that argument
because it was not presented to the BIA. Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir.
2012).
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