Ihsan Bazzi v. Eric Holder, Jr. , 746 F.3d 640 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a1040n.06
No. 12-3759
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
IHSAN ALI BAZZI, ) Dec 19, 2013
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) On Petition for Review from the
) Board of Immigration Appeals
ERIC H. HOLDER, JR., Attorney General )
)
Respondent. )
Before: BOGGS and SUTTON, Circuit Judges; and CLELAND, District Judge.*
BOGGS, Circuit Judge: Petitioner Ihsan Bazzi, a Lebanese national, seeks review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal of an immigration judge’s (IJ) order
denying his application for adjustment of status and ordering his removal from the United States.
Because the decision of the immigration judge is supported by substantial evidence, we deny Bazzi’s
petition for review.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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I
The petitioner, Ihsan Bazzi, and his purported ex-wife, Adla, were married in 1975 in
Lebanon. During their marriage, they lived in Lebanon while Bazzi served in the South Lebanese
Army. In 1986, following the birth of five of their six children, Mr. and Mrs. Bazzi obtained a
divorce from a Lebanese court allegedly because the then-Mrs. Bazzi did not want to accompany
him to the United States. Shortly after the divorce was obtained, Adla gave birth to their sixth child.
In 1987, Bazzi’s father, who had recently been admitted to the United States as a lawful
permanent resident, successfully petitioned for a second-preference visa for an unmarried child.
Bazzi then went to the United States Embassy in Tel Aviv in order to apply for an immigrant visa.
During the application interview, the consular officer’s suspicions were raised by the fact that
Bazzi’s sixth child was born after the date of the divorce. When questioned about the current state
of their relationship, Bazzi said that he and his wife were on good terms and that she saw their
children twice a week but when the consular officer later interviewed Adla, she told him that she had
not seen Bazzi or her children since the divorce. Additionally, Kathy Bazzi, his sister-in-law,
informed the Embassy that Bazzi was still married and that the divorce was obtained fraudulently.
All of this evidence led the consular officer to conclude that Mr. and Mrs. Bazzi had obtained a
sham divorce and that Bazzi was therefore ineligible for a visa, a finding reiterated by the State
Department following Bazzi’s efforts to provide additional evidence on his behalf.
Two years later, in 1991, Adla entered the United States as an unmarried child of a lawful
permanent resident, followed by the Bazzis’ children, all of whom, as well as Adla, are now citizens.
In 1995, Bazzi entered the United States without permission or parole and remained illegally for
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eight years until 2003, when he filed the application for adjustment of status, which was denied in
2008 and which prompted the Notice to Appear (NTA) that initiated this case.
Bazzi appeared at removal proceedings in 2008 at which he conceded seven of the eight
factual allegations and two of the three charged violations of the INA set forth in the NTA. Bazzi’s
admissions left one remaining factual issue and one remaining charge for adjudication: the allegation
that Bazzi willfully misrepresented a material fact in order to procure an immigration benefit, and
the resulting violation of 8 U.S.C. § 1182(a)(6)(C)(I).
The IJ conducted two merits hearings, in July 2009 and February 2010, during which he took
testimony from Bazzi, members of his family, and two Immigration and Customs Enforcement (ICE)
agents. In June 2010, the IJ denied Bazzi’s application for adjustment of status and ordered his
removal, finding by “clear, convincing and unequivocal evidence” that Bazzi had violated the INA
by seeking to procure a visa by fraud. 8 U.S.C. § 1182(a)(6)(C)(I). In particular, the IJ determined
that Bazzi misrepresented himself in his visa application as divorced when, in reality, the divorce
was a sham calculated to gain admission to the United States. Bazzi timely appealed to the BIA
which, reviewing the IJ’s findings of fact for clear error and all other findings de novo, dismissed
Bazzi’s appeal in June 2012. He filed a timely petition for review.
II
When the BIA adds its own language to an IJ’s decision instead of simply adopting it, we
review the IJ’s decision in light of the BIA’s additional findings. See Gilaj v. Gonzales, 408 F.3d
275, 283 (6th Cir. 2005).
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We review the IJ’s findings, including those regarding the petitioner’s credibility, under the
substantial-evidence standard. Yu v. Ashcroft, 364 F.3d 700, 702–703 (6th Cir. 2004). Substantial-
evidence review is highly deferential, permitting reversal only if “any reasonable adjudicator would
be compelled to conclude to the contrary” which is when the record “not only supports a contrary
conclusion, but indeed compels it.” 8 U.S.C. § 1252(b)(4)(B); Mikhailevitch v. INS, 146 F.3d 384,
388 (6th Cir. 1998). We review the BIA’s legal conclusions de novo, with deference to “the BIA’s
reasonable interpretations of the INA.” See Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005).
In order to support removal, the government bears the burden of establishing, by clear and
convincing evidence, that Bazzi is deportable, 8 U.S.C. § 1229a(c)(3)(A), in this case by
demonstrating inadmissibility at the time of Bazzi’s petition for change of status, 8 U.S.C.
§ 1227(a)(1)(A). The government can do so on either of the two grounds admitted by Bazzi
(immigration document violation or presence without permission) or by a showing that Bazzi
willfully misrepresented a material fact in order to procure an immigration benefit, the third charge
in the NTA. 8 U.S.C. § 1182(a)(6)(C)(I).
In addition to attempting to rebut the government’s evidence in support of deportation, Bazzi
continued to pursue his application for adjustment of status. In order for him to succeed, he must
prove clearly and beyond doubt that he is not inadmissible as charged. 8 C.F.R. § 1240.8(b).
Needless to say, such a showing is impossible should the government succeed in carrying its burden.
Only two of the three alleged grounds for inadmissibility are potentially waivable: violation
of document requirements and unlawful presence, the two grounds admitted by Bazzi.
Inadmissibility for unlawful presence, though otherwise ineligible for waiver, has been deemed by
the BIA implicitly waived by the LIFE Act. 8 U.S.C. § 1255(I); See Cheruku v. Attorney General
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of the United States, 662 F.3d 198, 204 (3d Cir. 2011) (finding adjustment provisions of LIFE Act
“in tension” with statutory bars to admissibility and, therefore, ambiguous). Inadmissibility for
document violations are waivable under 8 U.S.C. § 1182(a)(7)(A)(ii).
In contrast, the third ground, inadmissibility due to fraud or misrepresentation, is not
waivable for Bazzi because such waivers can only be granted if the alien is (1) the spouse or child
of a citizen or permanent resident and (2) can show that his removal will result in “extreme
hardship” to the qualifying relative. 8 U.S.C. § 1182(I). Bazzi’s father, the predicate relative for
his failed 1989 immigration attempt, died in 1994, leaving Bazzi with no other qualifying relatives
and rendering him unable to meet the waiver provision’s second requirement. The issue of Bazzi’s
sham divorce is therefore fully dispositive of his admissibility: if we uphold the IJ’s finding of
willful misrepresentation of a material fact under substantial-evidence review, Bazzi’s petition
necessarily fails.
In his petition, Bazzi argues that the ALJ’s finding of immigration fraud is not supported by
substantial evidence. (Pet’r’s Br. 19–20). He also offers the argument that the very concept of a
“sham divorce” is not legally cognizable as the basis for the denial of an immigrant visa. (Pet’r’s
Br. 16–19).
III
The appeal before us comes down to a single inquiry: was the ALJ’s finding of willful
misrepresentation of a material fact in pursuit of an immigration benefit supported by substantial
evidence?
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A
The IJ found that Bazzi willfully misrepresented a material fact, basing his decision on what
could be fairly described as a litany of evidence presented at hearings conducted in July 2009, and
February 2010.
To start, there is the evidence that prompted the NTA in the first place: the Tel Aviv consular
officer’s denial of Bazzi’s application for an immigrant visa in 1989. A State Department cable
recorded the consular officer’s evidence supporting his finding of sham divorce and his denial of
Bazzi’s visa. First, during interviews, Bazzi and Adla told conflicting stories regarding the
frequency of her visits and the current state of their relationship. Second, Bazzi’s sister-in-law
informed the embassy that Bazzi’s divorce was a sham designed to aid in procuring a visa. Finally,
following the consular officer’s initial denial of Bazzi’s application, the State Department received,
reviewed, and discredited additional documentary evidence proffered by Bazzi including an
affidavit by Adla, reiterating its finding of a sham divorce and ineligibility for a visa.
Two ICE agents, Keith and Fout, also testified. Agent Keith stated that in July 2009, at 9:00
p.m. the night before the first hearing, the agents conducted an unannounced visit to Adla’s house
in Michigan, finding evidence that Bazzi resided there, including discovering men’s clothing in
Adla’s bedroom closet. Though Bazzi’s son, Jamal, claimed the clothes belonged to him, he
admitted that, “a couple of the clothing [sic] were his father’s,” a fact confirmed in interview with
another son, Fadel. This evidence directly contradicts Bazzi’s own testimony that, “I do not keep
extra pants there. I do not keep anything at that residence.” In addition, the agents also found
medication prescribed to Bazzi and spoke to a neighbor who described Bazzi and Adla as married
and living with two adult children. Lastly, Agent Fout ran an address check on Bazzi and Adla
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which, though not foolproof, indicated that the couple were likely to have shared several addresses
in the past. Ultimately, neither of the ICE agents could definitively conclude that Bazzi lived with
Adla.
Evidence was also taken from members of Bazzi’s family, much of which further cast his
truthfulness into doubt. Kathy Bazzi Almi, Bazzi’s onetime sister-in-law, claimed that she lied at
her then-husband’s request when she told the U.S. Embassy in Tel Aviv that the Bazzi’s divorce was
a sham. Oddly, Almi claimed that she told this lie during a visit to the Embassy rather than by
phone as recorded in the State Department cable. Almi also stated that Bazzi was at Adla’s house
at 9:00 a.m. the day of the ICE agents’ evening visit, contradicting Bazzi’s testimony that he visited
only once a week to see his children. One of the ICE agents reported that Bazzi’s son, Jamal, during
the on-site interview, said that the whole family had dinner every night at Adla’s house. Bazzi’s
story was further cast into doubt by the in-court testimony of two other sons. Fadel stated that they
all had dinner together at least “four to five times a week” and Ibrahim, according to the IJ,
“vacillated about where the father actually had his dinner, and he gave the court several inconsistent
statements . . . .”
Bazzi also raised several arguments in his briefs to rebut the IJ’s findings. First, he argued
against the IJ’s adverse credibility determination by pointing out that much of the testimony
concerned events that took place over twenty years ago. (Pet’r’s Br. 20). This is true, and Bazzi is
right to claim that memories lapse and that the ages of his children make accurate recall less
probable. However, the IJ’s credibility determination was based, at least in part, on contradictory
accounts of contemporary events, for example those regarding Bazzi’s daily habits. The Bazzi
family’s conflicting stories were not, as the petitioner describes them, “slight inconsistencies,” but
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instead were so mutually contradictory as to stand in their own right as evidence that Bazzi and his
family were lying.
Finally, the IJ asked Bazzi why he and his wife got a divorce, “and he quite clearly and
emphatically said the only reason was I wanted to come to the United States and she did not . . . .”
But Mr. and Mrs. Bazzi divorced in 1986. Adla herself then moved to the United States, as an
unmarried child of a lawful permanent resident, in 1991, five years after their divorce and two years
after Bazzi’s failed attempt to procure an immigrant visa. This drastic, inexplicable change of heart
virtually compelled the IJ to discredit the reason claimed for their divorce.
Simply put, the IJ did not believe Bazzi or the testimony of his family who, as he put it, “just
cannot quite keep their story straight.” In concluding his decision, the IJ was emphatic: “the
contested charge has been sustained by clear, convincing and unequivocal evidence, not to mention,
in the Court’s view, beyond any doubt whatsoever.” The BIA agreed.
In summary, the IJ and BIA found that Bazzi’s divorce was a sham, that in putting himself
forth as a unmarried child, he willfully misrepresented a material fact, rendering him inadmissible.
As for the instant petition for review, far from compelling us to a contrary decision (as any reversal
under substantial evidence review requires), the evidence on the record leads us to conclude that the
BIA was quite correct to agree with the IJ in discrediting Bazzi’s story and dismissing his appeal.
B
Bazzi’s second major argument is that the very concept of the “sham divorce” is itself not
a legally cognizable basis for a finding of misrepresentation. Bazzi’s argument runs as follows:
while there are statutes and regulations addressing “sham marriage,” there is no such authority
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establishing the legal concept of “sham divorce.” In the absence of such authority, the Attorney
General cannot find immigration fraud when Bazzi did no more than accurately represent himself
as having obtained a divorce, something he claims to be “simply a legal status.” (Pet’r’s Br. 16–18).
Additionally, Bazzi contends that the very concept of a “sham divorce” is only a construct of the
immigration courts and that since immigration courts have not employed “sham divorce” as a basis
for finding immigration fraud, neither should we. (Pet’r’s Br. 18–20).
Bazzi’s first argument is that the lack of explicit statutory authorization or regulatory
guidance for the Attorney General to assess the legitimacy of a sham divorce prohibits such a
determination. Unfortunately, this argument pays scant attention to the language of the INA.
Bazzi’s NTA charged him with immigration fraud. The specific language of the INA is:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documentation, or admission into the United
States or other benefit provided under this chapter is inadmissible.
8 U.S.C. § 1182(a)(6)(C)(I). An earlier part of the same section of the INA states: “Except as
otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a).
In other words, if an alien willfully misrepresents a material fact in applying for a visa, he is
inadmissible and thus, absent a waiver (inapplicable here), is precluded from adjusting his status to
that of lawful permanent resident. 8 U.S.C. § 1255(I).
Whether or not “sham divorce” can serve as the basis of a charge of material
misrepresentation comes down to a simple, two-part inquiry: did the alien (1) willfully misrepresent
(2) a fact that was material. Willful misrepresentation itself requires no more than “knowledge of
the falsity” of facts presented to an immigration officer; unlike fraud, misrepresentation requires no
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intent to deceive. See Parlak v. Holder, 578 F.3d 457, 463–64 (6th Cir. 2009). A fact’s materiality
is determined according to the effect that the fact would have had on the ultimate immigration
decision had the truth been known. Petkiewytsch v. I.N.S., 945 F.2d 871, 881 (6th Cir. 1991)
(“[M]ateriality of the misrepresentations is established where the government shows that disclosure
of the concealed information probably would have led to the discovery of facts warranting the denial
of a visa.”).
Here, Bazzi was found to have entered into a sham divorce, which is to say that, while his
divorce may have borne the imprimatur of the Republic of Lebanon, he and his wife were not truly
divorced. They continued to conduct their affairs together as man and wife. Bazzi knew the reality
of his marital status and for him to have conveyed any impression to the contrary, let alone to have
embellished his story with details of the couple’s fictitious estrangement, was to willfully
misrepresent the truth.
As to the second part of the inquiry, Bazzi’s actual marital status was undoubtedly material.
An adult man and father of six children, a soldier in the South Lebanese Army and agent for the
Mossad, sought immigration as the unmarried child of a lawful permanent resident. See 8 U.S.C.
§ 1153(a)(2) (allocating visas to “[s]pouses and unmarried sons and unmarried daughters of
permanent resident aliens”). As the BIA itself said in a case cited by Bazzi, “the intent of Congress
in providing for preference status for unmarried sons and daughters of lawful permanent residents
was to reunite with their parents unmarried children who, although not minors, were still part of a
family unit.” Matter of Aldecoaotalora, 18 I&N Dec. 430, 431 (BIA 1983). This most certainly does
not describe Bazzi who, at the time of his application, was a fully independent adult living as a
married man and father of six children, regardless of the technical legal status of his marriage. Like
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the alien in Aldecoaotalora, he had not “returned to the family unit of [his] parents” and, like her,
his sole reason for getting a divorce was in order to obtain a visa. Ibid. Given the BIA’s
understanding of the Act’s purpose in providing these visas, it seems virtually certain that, had the
truth of Bazzi’s sham marriage been known, he would have been denied the immigration benefit he
sought to procure.
As to Mr. Bazzi’s second argument, that “sham divorce” is a doctrine limited to the
immigration courts, he is simply in error. In 1996, the Supreme Court implicitly recognized sham
divorce as a potential basis upon which to deny benefits in the context of immigration law, indeed
in the context of immigration fraud. See I.N.S. v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996)
(articulating the types of entry fraud that the BIA, in its discretion, chose not to consider because
they were too remote in time including, “pre-entry and post-entry sham divorces . . . .”); see also
Restrepo v. Holder, 676 F.3d 10, 15–16 (1st Cir. 2012) (employing sham divorce in evaluating the
good moral character of an applicant for immigration benefits). Rather than being, as the petitioner
suggests, merely “an invention of the immigration courts,” the concept of sham divorce has been
recognized in diverse fields of law. (Pet’r’s Br. 17–18). See, e.g., In re Rodgers, 315 B.R. 522, 533
(Bankr. D.N.D. 2004) (finding against creditor’s claim of sham divorce in bankruptcy proceedings).
Sham divorce, if the alien willfully misrepresents the truth and if the alien’s genuine marital
status is a material fact, can serve as a perfectly legitimate basis for a finding of immigration fraud
and attendant inadmissibility under the INA. 8 U.S.C. § 1182(a)(6)(C)(I).
In conclusion, the BIA’s finding of immigration fraud by a sham divorce is a legitimate basis
for denying admissibility and the BIA’s findings were supported by substantial evidence.
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IV
For the reasons set forth above, we DENY Bazzi’s petition for review.
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