Ihsan Bazzi v. Eric Holder, Jr. ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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IHSAN ALI BAZZI,
-
Petitioner,
-
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No. 12-3759
v.
,
>
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Respondent. -
ERIC H. HOLDER, JR.,
N
Upon Petition for Review of an Order of Removal
of the Board of Immigration Appeals.
No. A 027 937 455.
Argued: October 30, 2012
Decided and Filed: December 19, 2013*
Before: BOGGS and SUTTON, Circuit Judges; and CLELAND, District Judge.**
_________________
COUNSEL
ARGUED: Maris J. Liss, GEORGE P. MANN & ASSOCIATES, Farmington Hills,
Michigan for Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent ON BRIEF: Maris J. Liss, George P.
Mann, GEORGE P. MANN & ASSOCIATES, Farmington Hills, Michigan, for
Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
*
This decision was originally issued as an “unpublished decision” filed on December 19, 2013.
The court has now designated the opinion as one recommended for full-text publication.
**
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 12-3759 Bazzi v. Holder Page 2
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OPINION
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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.
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
No. 12-3759 Bazzi v. Holder Page 3
finding reiterated by the State Department following Bazzi’s efforts to provide additional
evidence on his own 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 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 Immigration
and Nationality Act (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).
No. 12-3759 Bazzi v. Holder Page 4
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
occurs only 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 can be waived or
avoided: unlawful presence and violation of document requirements, the two grounds
admitted by Bazzi. Inadmissibility for unlawful presence, though otherwise ineligible
for waiver, has been deemed by the BIA implicitly waived under a narrow exception,
possibly not applicable here, by the Legal Immigration Family Equity Act (LIFE Act).
8 U.S.C. § 1255(i). See Ramirez-Canales v. Mukasey, 517 F.3d 904, 909–10 (6th Cir.
2008) (finding reasonable the BIA’s interpretation of the INA’s adjustment provisions
No. 12-3759 Bazzi v. Holder Page 5
in light of the ambiguity created by seemingly conflicting provisions in the LIFE Act).
Inadmissibility for document violations is 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?
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
No. 12-3759 Bazzi v. Holder Page 6
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 Immigration and Customs Enforcement (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 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. on 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,
No. 12-3759 Bazzi v. Holder Page 7
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 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, unexplained 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 an unmarried child, he willfully misrepresented a material fact,
No. 12-3759 Bazzi v. Holder Page 8
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 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. 16–19). 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
No. 12-3759 Bazzi v. Holder Page 9
(inapplicable here), is precluded from adjusting his status to that of lawful permanent
resident. 8 U.S.C. § 1255(a).
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 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. Bazzi was an adult man and father of six children, a soldier in the
South Lebanese Army and an agent for the Mossad who 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,
No. 12-3759 Bazzi v. Holder Page 10
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 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 divorce 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.
No. 12-3759 Bazzi v. Holder Page 11
IV
For the reasons set forth above, we DENY Bazzi’s petition for review.