John Asare Boadi v. Eric Holder, Jr , 706 F.3d 854 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2742
JOHN K. A SARE B OADI,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A078-856-812
A RGUED JANUARY 9, 2013—D ECIDED F EBRUARY 7, 2013
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. In 2001, John Asare Boadi, a
Ghanian national that remained in the United States
past his visa’s authorization, obtained conditional per-
manent resident status by marrying a U.S. citizen. Two
years later, he petitioned the Department of Homeland
Security (“DHS”) to remove the condition on his status,
but the subsequent DHS interview revealed Boadi’s
2 No. 12-2742
marriage appeared to be a ploy to obtain permanent
resident status. DHS initiated removal proceedings, and
an immigration judge eventually denied Boadi’s request
for a good-faith marriage waiver through which Boadi
could have avoided removal if he proved he entered
his marriage (which had now ended through divorce)
in good faith. Boadi now challenges the nature of that
proceeding as well as the immigration judge’s substan-
tive conclusions. For the reasons set forth below, we
deny Boadi’s petition for review.
I. Background
A. Factual Background
Boadi legally entered the United States in 2000 but
overstayed his thirty-day authorization. He subsequently
married Veronica Bonds, a U.S. citizen, in 2001. As a
result, he adjusted his status to conditional lawful perma-
nent resident in 2003 pursuant to 8 U.S.C. § 1186a(a)(1)
(“an alien spouse . . . shall be considered, at the time of
obtaining the status of an alien lawfully admitted for
permanent residence, to have obtained such status on a
conditional basis”). In 2007, Boadi and Bonds filed a joint
petition on U.S. Custom and Immigration Services form
I-751 seeking removal of the “condition” to his permanent
resident status, and they attached documentation sup-
porting the authenticity of their marriage. See 8 C.F.R.
§ 216.4(a)(5). DHS’s interview with the couple, however,
revealed a number of deficiencies in their application.
For instance, they lived apart, Boadi in Ohio and Bonds
in Illinois. In fact, DHS discovered that Boadi may have
No. 12-2742 3
lived with his ex-wife, another Ghanian national that
acquired legal status by marrying a U.S. citizen, during
his marriage to Bonds. Additionally, Bonds could
neither name Boadi’s three biological children nor the
street on which Boadi lived. They also gave conflicting
answers to the same questions regarding their respec-
tive children’s relationships, who paid the bills at
Bonds’s home, and the day Boadi arrived for his interview.
After the interview, DHS sent a letter to Boadi ex-
pressing its intent to deny the petition. Boadi failed to
respond, and DHS terminated his legal status in 2009.
DHS subsequently issued a notice to appear on three
grounds: (1) obtaining an immigration benefit by fraud
or willful misrepresentation, (2) remaining in the
United States for a period longer than permitted, and
(3) having his conditional lawful permanent resident
status terminated.
Boadi and Bonds divorced only weeks after the notice
to appear, which automatically terminates an alien’s
conditional legal status. 8 U.S.C. § 1186a(b)(1)(A)(ii). This
ground was distinct from DHS’s existing allegation of
fraud, but either way, Boadi was now removable under
8 U.S.C. § 1227(a)(1)(D)(i). Facing deportation, Boadi
requested a good-faith marriage waiver through
which the Attorney General or DHS may discretionarily
remove the conditional status (i.e., grant full permanent
resident status) to an alien who entered into a qualifying
marriage in good faith even though it was later termi-
nated. 8 U.S.C. § 1186a(c)(4)(B). DHS eventually denied
this request.
4 No. 12-2742
B. Procedural Background
Removal proceedings began, and Boadi brought coun-
sel with him to his March 2010 “master calendar” hear-
ing. Boadi conceded removability based on the termination
of his conditional lawful resident status, but he opposed
the first two grounds. He also requested a transfer to
the Cleveland Immigration Court because he still
resided in Ohio. DHS opposed this request, and the
immigration judge decided to keep the case in Chicago
to decide only the issue of removability, reasoning that
the evidence of fraud would come from the Chicago
DHS agent that interviewed Boadi and Bonds. He con-
tinued the case and stated after the next hearing he
would “transfer the case to Cleveland.”
A few weeks before Boadi’s next hearing, his counsel
withdrew, and Boadi appeared pro se on March 11, 2011.
Despite the immigration judge’s previous assurances,
he told Boadi this would be his “final” hearing, meaning
the court would decide every issue that day, not just
removability. In fact, the immigration judge incorrectly
asserted that he originally scheduled the hearing “to
complete [Boadi’s] case.” Nevertheless, the immigration
judge was willing to continue the case for twenty addi-
tional days so Boadi, who expressed a desire to obtain
new counsel, could consult an attorney. This compromise
did not satisfy DHS. Because the agent that investigated
Boadi’s marriage was present, DHS requested that the
court take her testimony. The immigration judge ac-
ceded. Boadi was permitted to cross-examine the wit-
ness, but he abandoned his attempt after one question.
No. 12-2742 5
Before adjourning, the immigration judge recognized
the difficult situation Boadi faced without counsel. He
further explained that he asked the government to
submit the I-751 application (for the good-faith marriage
waiver, not the original joint submission with Bonds),
which contained various documents, and he twice
asked Boadi whether there was any evidence he wanted
the immigration judge to consider, reminding him he
could bring additional material to the next hearing.
On March 31, Boadi had what would turn out to be
his final hearing. He again appeared pro se. The immigra-
tion judge examined Boadi, who attempted to account
for the discrepancies in the DHS investigation. He stated
he moved to Chicago in November 2001 to marry
Bonds before he started at an Ohio nursing school in
2003. He visited Bonds, who later moved to Decatur,
Illinois, on the weekends. Boadi also denied living with
his ex-wife. The confusion stemmed, Boadi testified,
from his children’s use of his first wife’s address. Boadi
said the children received letters with his name on them;
that is why it appears that he received mail there. Boadi
did admit he used his ex-wife’s address for his driver’s
license but only because he could not use the
friend’s address where he actually lived. As for the
conflicts between his and Bonds’s answers, Boadi ex-
plained Bonds forgot his children’s names because it
had been a while since she saw them. Finally, Boadi
provided letters from friends supporting the bona fides
of his marriage, but the immigration judge noted
that some of this information conflicted with Boadi’s
testimony; namely, that the friends stated Boadi and
6 No. 12-2742
Bonds were happily married during a period that Boadi
testified they were separated.
Ultimately, the immigration judge did not believe
Boadi’s account. He made an adverse credibility determi-
nation and issued an oral decision finding Boadi was
removable under 8 U.S.C. § 1227(a)(1)(D)(i) because
the government terminated his conditional status.1 The
immigration judge also found Boadi failed to meet his
burden for the good-faith marriage waiver under 8 U.S.C.
§ 1186a(c)(4)(B), his only application for relief. The immi-
gration judge found the discrepancies produced by the
DHS investigation damaging, and Boadi’s efforts to
compensate for them unpersuasive. Boadi appealed
through counsel to the Board of Immigration Appeals,
raising the same claims he now raises to this Court
and also challenging the immigration judge’s decision as
clearly erroneous. The Board affirmed, and Boadi now
petitions this Court for review.
II. Discussion
Congress limits our ability to review “any . . . deci-
sion . . . of the Attorney General or Secretary of Homeland
Security the authority for which is specified . . . to be in
1
Because Boadi was removable under this section, the im-
migration judge did not reach the issue of removability
under sections 1227(a)(1)(A) (obtaining immigration benefit
by fraud) or 1227(a)(1)(B) (exceeding the authorization of
his visa).
No. 12-2742 7
the[ir] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). The
good-faith marriage waiver, through which Boadi seeks
relief, is such a section. 8 U.S.C. § 1186a(c)(4) (“The Secre-
tary of Homeland Security, in the Attorney Gen-
eral’s discretion, may remove the conditional basis of the
permanent resident status”). Section 1252(a)(2)(D)
restores jurisdiction for colorable legal and constitu-
tional claims, which we review de novo.
Boadi raises four issues on appeal, two of which are
legal and two of which are largely factual despite
Boadi’s efforts to couch them otherwise. We examine
the legal claims first: that the manner in which the im-
migration judge conducted his proceedings was “funda-
mentally unfair” and that the judge “failed to identify”
the evidence admitted into the record. We then turn to
Boadi’s claims that the immigration judge erred in
making an adverse credibility determination and inap-
propriately weighed the evidence.
A. Manner of Proceedings
Boadi primarily takes issue with the manner in which
the immigration judge conducted the proceedings. Specifi-
cally, Boadi argues that when the immigration judge
continued the case after Boadi’s initial master calendar
hearing, he indicated he would decide the issue
of removability, then transfer the case to Cleveland to
determine applications for relief. At the second hearing,
however, the immigration judge told Boadi it was his
“final hearing.” He did continue the case for twenty
days so Boadi could secure counsel, but he also granted
8 No. 12-2742
DHS’s request to take testimony from its witness. In
essence, Boadi argues that he was willing to contest
removability pro se but not applications for relief.
The immigration judge’s switch, Boadi argues, had two
consequences: (1) he did not have a meaningful oppor-
tunity to cross-examine the DHS witness or present
other evidence, and (2) the immigration judge deprived
him of an opportunity to set forth “any and all applica-
tions for relief.” 2 He contends these consequences vio-
lated his rights under 8 U.S.C. § 1229a(b)(4)(B),3 which
provides the “alien shall have a reasonable opportunity
to examine the evidence against the alien, to present
evidence on the alien’s own behalf, and to cross-examine
witnesses presented by the Government.”
2
Boadi also argues the immigration judge’s conduct violated
his rights in a third way—that the Board failed to consider
the “implications” of this procedural posture. Boadi does not
explain what these implications are beyond having to
proceed pro se when the government examined its witness
and having twenty days to secure Chicago counsel instead of
more time to secure Cleveland counsel, both of which
we consider.
3
Boadi initially asserted that these procedural irregularities
deprived him of due process under the Fifth Amendment.
However, as Boadi recognizes in his reply brief, the good-faith
marriage waiver is discretionary. Discretionary waivers (i.e., the
waiver of inadmissibility) are not liberty interests and do not
implicate the Constitution. See Lagunas-Salgado v. Holder, 584
F.3d 707, 712-13 (7th Cir. 2009); Kahn v. Mukasey, 517 F.3d 513,
518 (7th Cir. 2008).
No. 12-2742 9
Preliminarily, even if Boadi believed that the hearing
would only concern removability, it is difficult to see how
the proceeding surprised him. One contested ground of
removability was 8 U.S.C. § 1227(a)(1)(A) (permitting
deportation of inadmissible aliens) because he violated
8 U.S.C. § 1182(a)(6)(C)(i), which applies to any “alien who,
by fraud or willfully misrepresenting a material fact, . . .
has procured[] a visa, other documentation, or admission
into the United States or other benefit provided under
this chapter.” Thus, in proving removability, DHS had
to prove Boadi made a misrepresentation in securing
his conditional permanent resident status. It did so
through the live testimony of the DHS agent that investi-
gated Boadi’s marriage to Bonds. Notwithstanding,
Boadi was still not deprived of an opportunity to cross-
examine the witness. For one, the immigration judge
offered him the opportunity to do so at the hearing,
which Boadi declined. But more importantly, if Boadi
thought this proved inadequate, he could have recalled
the witness (or presented new evidence) at the continued
hearing twenty days later, either personally or through
counsel. He chose not to.
Next, Boadi’s conclusory assertion that the immigra-
tion judge deprived him of an opportunity to “set forth
any and all applications for relief” lacks merit. First,
Boadi does not explain why he could not do so during
the twenty-day continuance he did receive from the
immigration judge nor does he explain why he could not
ask for an additional continuance at that hearing to do
so. In fact, at no point during the entire proceeding has
Boadi suggested there is another application for relief.
10 No. 12-2742
This all leads to the glaring absence of prejudice in
Boadi’s case. See Delgado v. Holder, 674 F.3d 759, 769
(7th Cir. 2012) (“Even if Daisy’s testimony was inappro-
priately excluded, Delgado has not shown that he was
prejudiced by this exclusion.”); Alimi v. Gonzales, 489 F.3d
829, 834 (7th Cir. 2007) (“To warrant a new immigra-
tion hearing . . . an alien must establish that she was
prejudiced, that is, that the error likely affected the
result of the proceedings.”). Boadi might have preferred
the chance to present a case in Cleveland with more
time, but even with counsel representing him on appeal
he fails to offer a single way in which the manner of
the proceeding altered the outcome. It is not enough to
suggest that cross-examination might have gone dif-
ferently or that an attorney (assuming Ohio counsel was
available) would have presented different evidence.
Maybe a better cross-examination or different evidence
would have exposed a weakness in the DHS investiga-
tion. But to succeed on appeal, Boadi must point to that
alleged weakness and explain how it affected his case.
When asked at oral argument what evidence a lawyer
would have produced, Boadi’s counsel cryptically
alluded to documents in the “government’s files” with-
out explaining what this evidence was or why it
remains unavailable to him. The most specific thing he
offered was the evidence submitted with his original
joint I-751 petition (not the good-faith marriage petition)
through which he originally received conditional perma-
nent resident status. But despite being the person that
submitted this information, Boadi does not explain what
evidence was in the petition, how it supports his claim,
or why he no longer has it.
No. 12-2742 11
This flaw in Boadi’s argument has more applicability
to the application-for-relief claim. To the extent that
twenty days was insufficient to discover additional
grounds, the immigration judge issued his decision
eighteen months ago and Boadi still has not suggested
that an actual alternative application for relief exists.
We require a showing of prejudice because we want to
avoid remanding a case that will inevitably reach the
same result. Boadi provides no suggestion that a new
hearing would end differently. In short, it is not enough
that the immigration judge’s alleged errors had the poten-
tial to prejudice Boadi. Before granting his petition for
review, he must show that the procedural irregularities
actually prejudiced him. Otherwise, the error is harmless.
B. The Immigration Judge’s Consideration of the Evi-
dence
In his next claim, Boadi essentially argues that the
immigration judge “must at least identify” all of the
evidence submitted to him “for the purposes of building
a record on appeal.” This argument relates to the gov-
ernment’s submission of evidence at his second hear-
ing. Boadi does not contend that this information is not
part of the administrative record so we do not see how
the immigration judge failed to “build a record on ap-
peal.” Instead, he argues that because the immigration
judge did not cite to this material in his oral deci-
sion, Boadi does not know how much weight the im-
migration judge attached to each piece of evidence.
Boadi seems to suggest that several of the government’s
12 No. 12-2742
submissions contained multiple documents, and in dis-
cussing these submissions the immigration judge should
have indicated precisely what portions were considered
and how much weight he attached to each portion.
No such requirement exists, however. Boadi even rec-
ognizes that the immigration judge does not need to
discuss all of the evidence; he need only consider it. And
Boadi does not contend that the immigration judge
failed to meet this requirement. In light of this conces-
sion, we do not see how the immigration judge com-
mitted legal error.
Importantly, Boadi once again fails to explain how this
alleged error prejudiced him, and we do not see how it
could have. Because we lack jurisdiction to review
factual claims, a clear articulation of the relative weight
of the evidence would make no difference to Boadi’s
appeal. The same is true in typical cases that we review
for substantial evidence, upholding an immigration
judge’s findings “if they are supported by reasonable,
substantial, and probative evidence.” Balogun v. Ashcroft,
374 F.3d 492, 498 (7th Cir. 2004). The relative weight
does not matter so long as adequate evidence sup-
ports the immigration judge’s ultimate conclusion. Ac-
cordingly, we find this claim lacks merit.
C. Credibility Determination
Boadi’s challenge to the immigration judge’s credibility
finding is a factual challenge, which we cannot review
under 8 U.S.C. § 1252(a). This sort of claim challenges
the immigration judge’s assessment of the evidence and
presents no claim of law. Moreover, section 1186a further
No. 12-2742 13
limits our review by granting the immigration judge
the exclusive power to determine “what evidence is
credible.” Boadi, however, tries to frame the issue as
legal in two distinct ways.
First, he argues that the immigration judge conflated
his determination of whether Boadi was credible with his
determination of whether Boadi met his burden of proof.
However, Boadi’s characterization of the immigration
judge’s opinion is incorrect. The immigration judge
merely determined Boadi failed to meet his burden of
proof because he was not credible. Boadi’s evidence pre-
dominantly consisted of his own testimony and explana-
tions regarding DHS’s investigation; without credibility,
there was no evidence in favor of Boadi. And in making
this credibility determination, the immigration judge
reviewed the entire record and explained his reasoning
for the determination. He examined the discrepancies
uncovered by the DHS witness and explained how
Boadi’s clarifications were unpersuasive.
Second, Boadi argues the immigration judge did not
consider the factors in 8 U.S.C. § 1229a(c)(4)(C) in making
the credibility determination. This section is permis-
sive—the “immigration judge may base a credibility
determination [on various factors].” Thus, the immigra-
tion judge was under no obligation, contrary to Boadi’s
assertion, to, for instance, consider Boadi’s demeanor,
evasiveness, or internal inconsistency. See also id. (noting
“there is no presumption of credibility” and permitting
the immigration judge to consider “the totality of the
circumstances” and the “inherent plausibility of the ap-
14 No. 12-2742
plicant’s or witness’s account”). Thus, the immigration
judge correctly followed the law in determining Boadi
was not believable.
D. Weight of the Evidence
Finally, Boadi’s assertion that the immigration judge’s
decision was against the manifest weight of the evi-
dence, as the name suggests, requests that we reweigh
the immigration judge’s assessment of the evi-
dence—something we cannot do when the application
for relief is in the Attorney General’s discretion. 8 U.S.C.
§ 1252(a). However, Boadi again tries to couch this
claim as legal. First, Boadi argues that 8 C.F.R.
§ 216.5(e)(2)(i)-(iv) required the immigration judge to
place more weight on the bills and bank account state-
ments that bore both his and Bonds’s name. That regula-
tion, however, merely lists evidence an applicant “may”
submit. It does not require the immigration judge to
attach a certain weight to it.
Boadi also argues that the immigration judge focused
exclusively on Boadi and Bonds’s conduct after the mar-
riage. Boadi essentially argues that too much emphasis
on after-the-marriage conduct runs afoul of the statute’s
requirement that the marriage be “entered into” in good
faith—i.e., the couple’s intention at the time of mar-
riage. However, conduct after the marriage is certainly
relevant to determining Boadi’s intention at the time of
his marriage. A bona fide couple’s decision to have chil-
dren, buy a house together, or introduce one another to
the other’s children suggests that they intend to begin a
No. 12-2742 15
life together. These considerations are not dispositive—
a fraudulent marriage could exhibit similar tendencies
just like bona fide couples could live apart or speak
infrequently. But they are relevant, and an immigration
judge is charged with placing the appropriate weight
on them, which 8 U.S.C. § 1252(a) prevents us from
second guessing.
III. Conclusion
For the foregoing reasons, we D ENY Boadi’s petition.
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