Anouar Darif v. Eric Holder, Jr. , 739 F.3d 329 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1050
ANOUAR DARIF,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A048-276-498
ARGUED SEPTEMBER 28, 2012 — DECIDED JANUARY 2, 2014
Before POSNER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Anouar Darif, a native and citizen of
Morocco, married Dianna Kirklin, a citizen of the United
States, and by virtue of the marriage was admitted into the
United States as a conditional permanent resident in 2001. But
the marriage was a sham. Darif was convicted of marriage
2 No. 12-1050
fraud and related charges, and the Department of Homeland
Security (“DHS”) initiated proceedings to remove him. An
immigration judge (“IJ”) found Darif removable and rejected
all of his arguments for relief. The Board of Immigration
Appeals (“BIA” or “Board”) initially ordered further proceed-
ings, but when the case returned to the BIA after remand, the
Board likewise rejected all of Darif’s claims for relief from
removal.
In his petition for review, Darif presses only his argument
for an extreme-hardship waiver pursuant to 8 U.S.C.
§ 1186a(c)(4). He claims that the IJ was biased and otherwise
denied him a full and fair hearing in violation of his right to
due process. But regardless of the alleged flaws in the proceed-
ings before the IJ, the BIA independently reviewed Darif’s
request for a hardship waiver and exercised its discretion to
deny it; we have no jurisdiction to review that discretionary
determination. See 18 U.S.C. § 1252(a)(2)(B)(ii). Although we
may review constitutional claims and questions of law, see id.,Darif’s due-process argument cannot succeed because an alien
has no protected liberty interest in discretionary immigration
relief. Even if the due-process claim is recast as a challenge to
the legal sufficiency of Darif’s hearing under the governing
statutes and regulations, Darif was not prejudiced because the
BIA gave his hardship claim plenary and independent consid-
eration and denied it in an exercise of its discretion. Accord-
ingly, we deny the petition for review.
No. 12-1050 3
I. Background
Darif and Kirklin married in December 2000 in Morocco.
Later that month Kirklin submitted an I-130 Petition for Alien
Relative, the petition that must be filed to enable an alien
spouse to obtain lawful permanent residence status. The
approval of Kirklin’s petition allowed Darif to obtain the
necessary visa to enter the United States, which he did in
December 2001.
Because alien spouses married to United States citizens are
admitted for permanent residence on a conditional basis, see
8 U.S.C. § 1186a(a)(1), Darif’s status in the United States was as
a conditional permanent resident. To remove that conditional
status, Darif and Kirklin had to comply with a number of
requirements prescribed by statute, including jointly filing an
I-751 Petition to Remove Conditions on Residence and under-
going a personal interview. See id. § 1186a(c)-(d); Hammad v.
Holder, 603 F.3d 536, 538 (9th Cir. 2010). Darif and Kirklin
initiated the process for removing his conditional status by
filing the necessary I-751 petition in September 2003.
At some point evidence emerged that Darif had paid
Kirklin $3,000 for the marriage, exposing it as a sham. In 2004
Darif was charged with marriage fraud in violation of 8 U.S.C.
§ 1325(c), conspiracy to commit marriage fraud in violation of
18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C.
§ 1512(b)(1). A jury convicted Darif on all three counts the
following year, and we affirmed his convictions on appeal. See
United States v. Darif, 446 F.3d 701 (7th Cir. 2006).
An alien spouse’s visa may be revoked if it was obtained
through marriage fraud, see 8 U.S.C. § 1155; El-Khader v.
4 No. 12-1050
Monica, 366 F.3d 562, 568 (7th Cir. 2004), and marriage fraud is
a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G).
So in December 2005 the DHS terminated Darif’s conditional
permanent resident status, see id. § 1186a(b)(1), and initiated
removal proceedings the next month. The grounds for removal
were threefold: (1) Darif’s conditional residency status had
been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had commit-
ted marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was
inadmissible at the time of entry, see id. § 1227(a)(1)(A).
Notwithstanding his convictions, Darif continued to deny that
his marriage was fraudulent.
Darif and Kirklin filed a number of petitions in an effort to
stave off Darif’s removal. In January 2006 Kirklin filed a second
I-130 Petition for Alien Relative seeking to establish that the
marriage was really a good-faith marriage despite the jury’s
verdict. In February 2006 Darif and Kirklin jointly filed another
I-751 petition based on their continued marriage; they also
asserted that Darif’s removal would cause extreme hardship.
Finally, Darif filed his own I-751 petition relying solely on
extreme hardship.
Only the request for an extreme-hardship waiver is at issue
here, so we pause for a moment to sketch how this form of
relief works. As we have noted, to remove the conditional
status of permanent residence, an alien and his citizen spouse
must jointly file a timely I-751 petition and submit to a per-
sonal interview. See id. § 1186a(c)(1). The petition must state,
among other things, that the alien spouse and citizen spouse
are married and that they did not marry for the purpose of
gaining the alien spouse’s admission as an immigrant. Id.
No. 12-1050 5
§ 1186a(d)(1). The extreme-hardship waiver comes into play
when the alien spouse cannot comply with the petition and
interview requirements. See id. § 1186a(c)(4)(A). In that situa-
tion “[t]he Secretary of Homeland Security, in the Secretary’s
discretion, may remove the conditional basis of the permanent
resident status … if the alien demonstrates that … extreme
hardship would result if such alien is removed.” Id. A favor-
able determination of extreme hardship would have counter-
acted at least one basis for Darif’s removal—that his condi-
tional permanent residence status had been terminated. See id.
§ 1227(a)(1)(D)(ii).
Darif’s removal hearing was held on May 4, 2006, the day
after we issued our opinion affirming Darif’s convictions. Darif
and Kirklin appeared without an attorney. Apparently no one
was aware of our decision the day before because the IJ
continued the hearing to wait for the results of Darif’s criminal
appeal. Darif maintains, however, that the judge made a
number of off-the-record comments at this hearing suggesting
that he was biased. Because the record reflects none of these
comments, we take Darif’s version of events from his affidavit
and accept it for the sake of argument. Darif states that at the
beginning of the hearing, the IJ told Kirklin that she could let
go of Darif’s arm because he was “not going anywhere … yet.”
During the hearing itself, the judge referred to Darif’s convic-
tions and said, “[Y]ou had better hope you win that appeal
because if you don’t, you’re done, it’s over, you are out of here;
there are no more continuances, no more chances.” The judge
later referred again to Darif’s criminal case and told him that
if he lost in the Seventh Circuit, he would lose in immigration
court. Finally, when Darif asked the judge whether he should
6 No. 12-1050
notify the court when his appeal was decided, the judge
responded, “[O]h yeah, you can bring it in, we can get this over
with real quick, the sooner the better.”
The IJ reconvened the hearing on June 1, 2006, having
learned by then of our decision affirming Darif’s convictions.
This time Darif appeared with counsel, so the judge continued
the hearing to June 30 for purposes of “pleading and any and
all forms of … relief.” The judge explained to Darif that on that
date his counsel would tell the court “whether he wants to
apply for a benefit or a defense.” Whether these statements
meant that Darif needed to be prepared to present his evidence
on all his claims for relief on June 30 would later become the
subject of dispute.
At the June 30 hearing, the IJ determined that Darif was
removable on all three grounds advanced by the government,
essentially relying on Darif’s convictions for marriage fraud.
Darif’s attorney then advised the judge that Darif was pursu-
ing the following forms of relief: a continuance to allow
adjudication of the recently filed I-130 and I-751 petitions; an
extreme-hardship waiver under § 1186a(c)(4); a fraud waiver
under 8 U.S.C. § 1227(a)(1)(H); withholding of removal under
the Immigration and Nationality Act (“INA”); and protection
under the Convention Against Torture (“CAT”).
The IJ first addressed Darif’s request for a continuance and
denied it for lack of good cause. The judge noted that Darif had
not informed the immigration authorities that his convictions
had been affirmed and also that Darif’s convictions precluded
him from establishing a good-faith marriage, which would
doom the I-130 and I-751 petitions in any event. For good
No. 12-1050 7
measure the judge added that even if the convictions did not
have preclusive effect, he would deny the continuance in an
exercise of his discretion.
The judge then addressed the request for an extreme-
hardship waiver, expressing doubt that Darif was statutorily
eligible because his conviction for marriage fraud meant that
he never should have been conditionally admitted in the first
place. Darif’s attorney took the position that the statute
allowed for an extreme-hardship waiver despite the conviction.
The judge was clearly skeptical and demanded legal authority
in support of this position. Darif’s attorney responded that he
was simply relying on his reading of the statute. The judge
rejected the argument and held that Darif was statutorily
ineligible for a hardship waiver as a consequence of his
conviction of marriage fraud. The judge added that he would
deny the waiver as a matter of discretion.
The judge moved next to Darif’s request for a fraud waiver
under § 1227(a)(1)(H), quickly denying this form of relief
because Darif did not have a qualifying spouse based on his
fraudulent marriage and also because he was not otherwise
admissible. That left only Darif’s requests for withholding of
removal under the INA and protection under the CAT. The
judge instructed Darif to call his first witness. Darif’s attorney
was caught off guard and said that he was not prepared to
present evidence. At this point a squabble ensued about
whether at the June 1 hearing the judge had told Darif and his
attorney to be prepared to introduce evidence on June 30.
The judge refused to continue the matter and insisted that
Darif’s attorney move forward with evidence on the remaining
8 No. 12-1050
forms of relief that Darif was requesting. Darif’s attorney
declined, noting again that he did not have notice and was
unprepared to move forward on the withholding and CAT
claims. The judge construed Darif’s failure to present evidence
as an abandonment of the claims and denied them. On
September 1, 2006, the IJ issued a written order explaining his
findings.
Before the written order issued, however, Darif moved for
recusal, or in the alternative, rehearing. The motion was based
primarily on the judge’s off-the-record comments at the May
hearing. But Darif also maintained that recusal was necessary
based on the judge’s handling of proceedings involving Ouaffa
Melliani, a coconspirator in Darif’s marriage-fraud conspiracy.
Finally, Darif contended that the IJ had denied him a full and
fair opportunity to present evidence by insisting that he move
forward at the June 30 hearing when he was unprepared to do
so. The judge denied the motion in his September 1 written
order denying relief from removal.
Darif appealed to the BIA and won a partial remand. The
BIA found no basis for the IJ’s recusal and held that Darif was
not eligible for a fraud waiver. But the BIA remanded for
reconsideration of the claims for withholding of removal and
protection under the CAT, concluding that it was reasonable
for Darif’s counsel to assume that the IJ would not demand
evidence on these forms of relief at the June 30 hearing. In a
footnote the BIA also acknowledged that the IJ appeared to
have erred in imposing a good-faith marriage requirement for
eligibility for extreme-hardship waivers under § 1186a(c)(4),
No. 12-1050 9
but suggested that the error was inconsequential because any
application for such a waiver would be futile.
The IJ scheduled a new hearing in July 2008 but continued
it twice to allow the Citizenship and Immigration Services
(“USCIS”) to adjudicate the I-751 petition that Darif had filed
seeking an extreme-hardship waiver. In early December 2008,
the USCIS denied the extreme-hardship waiver because Darif
was statutorily ineligible based on his technically still valid (if
fraudulent) marriage to Kirklin.
When Darif’s hearing reconvened in March 2009, the IJ
agreed with the USCIS’s decision, reasoning that the statute
permitted extreme-hardship waivers only when an applicant
could not file a joint petition with his spouse and submit to a
personal interview. The judge noted that because Darif was
technically still married to Kirklin, he was capable of comply-
ing with the petition and interview requirements of
§ 1186a(c)(1) and therefore resort to the extreme-hardship
waiver was statutorily impermissible.
Darif’s attorney took issue with that reading of the statute,
and the proceedings again became contentious. The judge
demanded to know whether any legal authority supported
Darif’s counsel’s interpretation and warned him that a frivo-
lous application was sanctionable. Darif’s attorney replied that
he did not have any legal authority but was again relying on
his understanding of the text of the statute. The judge re-
sponded by reading the sanctions regulations to Darif’s
attorney.
The implied threat of sanctions prompted counsel to ask the
judge to relieve him as Darif’s attorney. A drawn-out exchange
10 No. 12-1050
then ensued about whether the judge should allow Darif’s
attorney to withdraw. The judge ultimately refused, noting
that the attorney knew Darif’s case and that withdrawal would
disadvantage his client. This got things back on track, and
counsel proceeded to introduce evidence regarding Darif’s
requests for withholding of removal and CAT protection.
The IJ denied Darif’s applications for withholding and
protection under the CAT. In his written decision, the judge
also explained his conclusion that Darif was statutorily
ineligible for an extreme-hardship waiver because he was still
married and therefore could file a joint I-751 petition. Finally,
the judge urged the BIA to consider imposing sanctions against
Darif’s attorney for advancing a frivolous argument about the
statutory availability of an extreme-hardship waiver.
In the meantime, Darif and Kirklin were divorced. Based on
this new development and before appealing the IJ’s decision to
the BIA, Darif moved to reopen. He was careful not to concede
the earlier point that his then-still-intact (if fraudulent) mar-
riage made him statutorily ineligible for a hardship waiver
under § 1186a(c)(4). But he argued that his recent divorce
removed that impediment to relief. He also submitted an
affidavit and other documents to support his substantive claim
that multiple hardships would flow from his removal:
(1) removal would sever family ties by effectively preventing
him from seeing his adopted son; (2) he had resided in the
United States for eight years; (3) he suffered from chronic back
problems; (4) the Moroccan government may presume him to
be a terrorist and torture him; (5) the King of Morocco may
persecute him for deserting from his government job; (6) he
No. 12-1050 11
owned his own culinary business in the United States; (7) he
had no other means of adjusting his immigration status; (8) he
had assisted local authorities in a criminal prosecution; (9) he
had no other negative immigration history and was law
abiding while in the United States; and (10) he was gainfully
employed and supported his family.
With the motion to reopen pending, Darif again appealed
to the BIA. The BIA treated the motion to reopen as a motion
to remand and considered it with his appeal. In a decision
issued in December 2011, the BIA dismissed the appeal and
denied the motion, rejecting Darif’s claims for withholding of
removal and protection under the CAT because he had not
established a likelihood that he would be persecuted upon his
removal to Morocco. The BIA also rejected Darif’s request for
an extreme-hardship waiver, holding that his conviction for
marriage fraud outweighed his claimed hardships. Alterna-
tively, the BIA determined that Darif’s proffer was insufficient
to show that any of the claimed hardships qualified as extreme.
Finally, the BIA declined to make a sanctions determination,
noting that if the IJ was concerned about counsel’s conduct, he
should have filed a complaint with the disciplinary counsel for
the Executive Office for Immigration Review.
Darif petitioned this court for review.
II. Discussion
Darif challenges only the denial of an extreme-hardship
waiver under § 1186a(c)(4). The scope of our review is limited.
Where, as here, the BIA issues its own opinion rather than
12 No. 12-1050
adopting or supplementing the IJ’s opinion, we review only the
BIA’s opinion. See Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir.
2010). As relevant here, the BIA did not adopt the IJ’s analysis
of the extreme-hardship waiver but instead exercised its own
plenary review and rejected the claim based on different
reasoning.
More fundamentally, Congress has strictly limited our
jurisdiction to review challenges like Darif’s. We generally lack
jurisdiction to review decisions committed to the immigration
agency’s discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii). Extreme-
hardship waivers are a discretionary form of relief, see id.§ 1186a(c)(4), so we lack jurisdiction to review the substance of
the BIA’s decision,1 see Johns v. Holder, 678 F.3d 404, 406 (6th
Cir. 2012); Iliev v. Holder, 613 F.3d 1019, 1023 (10th Cir. 2010).
We retain jurisdiction to review constitutional claims and
issues of law, see § 1252(a)(2)(D), and Darif has organized his
petition for review around an argument that he was denied
due process because the IJ was biased and interfered with his
ability to fully and fairly present his case.
1
The N inth Circuit has taken the position that federal courts retain
jurisdiction to review credibility determinations made by the agency when
determining whether a petitioner is eligible for an extreme-hardship
waiver. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005).
This approach, however, has come under sharp criticism for its reliance on
legislative history and its irreconcilability with the clear statutory text. See
Iliev v. Holder, 613 F.3d 1019, 1024 (10th Cir. 2010); Contreras-Salinas v.
Holder, 585 F.3d 710, 714 n.4 (2d Cir. 2009). Darif does not challenge an
adverse credibility determination or the weight that the agency gave his
evidence supporting his extreme-hardship petition, so we have no occasion
to decide this legal point today.
No. 12-1050 13
It is well established that aliens generally have due-process
rights in proceedings to determine their removability. See Reno
v. Flores, 507 U.S. 292, 306 (1993); Podio v. INS, 153 F.3d 506, 509
(7th Cir. 1998); Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 212 (1953); Yamataya v. Fisher (The Japanese
Immigrant Case), 189 U.S. 86, 101 (1903); Batanic v. INS, 12 F.3d
662, 666 (7th Cir. 1993). But this right does not extend to
discretionary forms of relief from removal. See, e.g., Delgado v.
Holder, 674 F.3d 759, 765 (7th Cir. 2012); Khan v. Mukasey,
517 F.3d 513, 518 (7th Cir. 2008); Hamdan v. Gonzales, 425 F.3d
1051, 1061 (7th Cir. 2005). We have repeatedly held that the
opportunity for discretionary relief from removal is not a
protected liberty interest because aliens do not have a legiti-
mate claim of entitlement to it. See, e.g., Boadi v. Holder, 706 F.3d
854, 858 n.3 (7th Cir. 2013); Duron-Ortiz v. Holder, 698 F.3d 523,
529 (7th Cir. 2012); Delgado, 674 F.3d at 765; Portillo-Rendon v.
Holder, 662 F.3d 815, 817 (7th Cir. 2011); Hamdan, 425 F.3d at
1061. Rather, discretionary relief from removal is akin to “an
‘act of grace.’ ” Appiah v. U.S. INS, 202 F.3d 704, 709 (4th Cir.
2000) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996)).
Darif’s due-process argument focuses exclusively on the
denial of his request for an extreme-hardship waiver, a
discretionary form of immigration relief. See § 1186a(c)(4)(A).
So even if Darif was statutorily eligible for a hardship waiver,
the decision whether to grant one remained entirely discretion-
ary. And indeed, the BIA denied a waiver in its discretion.
Because Darif has no legitimate claim of entitlement to an
extreme-hardship waiver under § 1186a(c)(4), his due-process
argument necessarily fails.
14 No. 12-1050
In his reply brief, Darif recasts the due-process claim as an
argument about the legal sufficiency of his hearing before the
IJ under the applicable statutes and regulations. We have
sometimes permitted this kind of recharacterization. See, e.g.,
Delgado, 674 F.3d at 766; Khan, 517 F.3d at 518. Although a
denial of discretionary relief may not be challenged on proce-
dural due-process grounds, removal proceedings are subject to
certain statutory and regulatory procedural requirements. See
8 U.S.C. § 1229a; 8 C.F.R. § 1240.1(c); Delgado, 674 F.3d at765–66. These include “notice and an opportunity for a fair
hearing.” Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010).
More specifically, aliens in removal proceedings are statutorily
entitled to a “reasonable opportunity to examine the evi-
dence[,] … to present evidence[,] … and to cross-examine
witnesses presented by the Government.” 8 U.S.C.
§ 1229a(b)(4)(B). Regulations governing the immigration
judge’s authority require the judge to “receive and consider
material and relevant evidence.” 8 C.F.R. § 1240.1(c).
Accordingly, “[w]e have repeatedly reminded aliens
claiming constitutional violations that immigration proceed-
ings that meet statutory and regulatory standards comport
with due process, and, as such, aliens are better-served by
arguing instead that immigration proceedings infringed the
statutory and regulatory right to a reasonable opportunity to
present evidence.” Khan, 517 F.3d at 518. Whether the IJ failed
to follow these statutory or regulatory procedures in denying
a petition for discretionary relief is a question of law that we
review de novo. See Delgado, 674 F.3d at 766.
No. 12-1050 15
But recasting his due-process argument as a claim about the
IJ’s failure to follow the statutory and regulatory requirements
doesn’t get Darif very far, for two independent reasons. First,
arguments raised for the first time in a reply brief are waived.
See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 n.9 (7th
Cir. 2012); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010);
Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). Darif
didn’t pivot to an argument under the statutes and regulations
until his reply brief. The argument is therefore waived.
Second, even if we were to conclude that the IJ’s handling
of the hardship-waiver question during the removal proceed-
ings fell short of the requirements in the governing statutes
and regulations, Darif must establish prejudice before we
would vacate the agency’s decision. See Khan, 517 F.3d at 518;
Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007).
And there was no prejudice here. Whatever shortcomings there
may have been in the proceedings before the IJ (and we do not
conclude that there were shortcomings), the BIA itself fully and
independently considered the evidence Darif submitted in
support of his petition for an extreme-hardship waiver under
§ 1186a(c)(4). Based on this independent and plenary review,
the BIA concluded that Darif did not deserve this form of relief
as a matter of discretion. That is, the BIA assumed without
deciding that Darif was statutorily eligible for a hardship
waiver and concluded—without relying on the IJ’s deci-
sion—that a waiver should be denied in an exercise of discre-
tion. This approach is entirely appropriate and effectively
forecloses our further review. See Alsagladi v. Gonzales, 450 F.3d
700, 701 (7th Cir. 2006) (“[W]hen an agency is entitled to deny
16 No. 12-1050
relief as an exercise of discretion, it is always unnecessary and
often inappropriate for a court to discuss the eligibility issue.”).
Notably, Darif does not argue that the IJ’s mishandling of
his case deprived the BIA of evidence it needed to evaluate the
hardship question. In short, the BIA provided Darif what he
claims the IJ did not: an unbiased, complete consideration of
his claim for an extreme-hardship waiver under § 1186a(c)(4).
Accordingly, even if the IJ failed to comply with his statutory
and regulatory duties, Darif suffered no prejudice.
The petition for review is DENIED .