Benjamin N. Omorhienrhien v. William P. Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2175
BENJAMIN N. OMORHIENRHIEN,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A200-381-476
____________________
ARGUED JANUARY 8, 2020 — DECIDED MARCH 13, 2020
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Benjamin Omorhienrhien is a Ni-
gerian citizen who received conditional permanent resident
status based on his marriage to a United States citizen. The
two later divorced, and Omorhienrhien sought to remain in
the country by submitting a petition to remove the conditions
on his residency. An obstacle loomed—the petition must or-
dinarily be jointly filed by the non-citizen and his spouse, but
Omorhienrhien’s former spouse was no longer in the picture.
2 No. 19-2175
To sidestep the roadblock, Omorhienrhien requested a discre-
tionary waiver of the joint-filing requirement, which is avail-
able to non-citizens who entered their failed marriages in
good faith. After hearing all the evidence, an immigration
judge was not persuaded that Omorhienrhien married his
wife in good faith and denied him the waiver. The Board of
Immigration Appeals agreed and dismissed the appeal. Omo-
rhienrhien now asks us to step in. Because our review is lim-
ited to legal errors and we find none, we decline to do so.
I
A
Benjamin Omorhienrhien came to the United States as a
visitor from Nigeria in 2008. Not long after arriving, he began
a relationship with Linda Harris, a citizen whom he met
through friends. The two exchanged vows a few months later.
The following year, Harris filed Form I-130 (Petition for Alien
Relative), which would allow Omorhienrhien a path to resi-
dency based on their marriage. U.S. Citizenship and Immigra-
tion Services denied the petition upon discovering that Omo-
rhienrhien had been legally married to another woman in Ni-
geria when he tied the knot with Harris, though the Nigerian
marriage had since ended. Omorhienrhien and Harris remar-
ried and then submitted a new petition. That effort succeeded,
and Omorhienrhien received conditional permanent resi-
dency in January 2011.
For an immigrant like Omorhienrhien who relies on his
marriage to a United States citizen for permanent residency,
the status comes with conditions, the greatest of which is that
it lasts for only two years. See 8 U.S.C. § 1186a(a)(1). To re-
move the conditions, Omorhienrhien had to do two things—
No. 19-2175 3
submit, together with his citizen-spouse, Form I-175 (Petition
to Remove Conditions on Residence), and then appear with
his spouse for a personal interview. See id. § 1186a(c)(1). If
Omorhienrhien did not check both boxes, the Department of
Homeland Security would terminate his permanent resident
status two years after he received it. See id. § 1186a(c)(2).
The problem for Omorhienrhien was that he and Harris
had already parted ways by the time he filed the petition to
remove the conditions on his residency. Their divorce became
final in July 2011, about six months after he obtained condi-
tional permanent resident status. This meant that Harris did
not join Omorhienrhien in filing the petition and was not
around to participate in the mandatory personal interview.
But the law offered Omorhienrhien another way to re-
move his residency conditions. He could seek a so-called
hardship waiver. The Secretary of the Department of Home-
land Security has the discretion under certain circumstances
to remove conditions on residency despite an immigrant fail-
ing to meet the joint-petition and joint-interview require-
ments. One of those circumstances is when the immigrant,
though now divorced, entered into a marriage in good faith.
See 8 U.S.C. § 1186a(c)(4)(B). Omorhienrhien sought a hard-
ship waiver on that ground when he filed his petition, but
USCIS denied it in March 2014.
B
The denial triggered removal proceedings. See 8 C.F.R.
§ 1216.5(f). In the immigration court, Omorhienrhien re-
quested review of the denial of his petition to remove the con-
ditions on his residency, including the USCIS decision deny-
ing him a waiver. The immigration judge held a hearing on
4 No. 19-2175
the issue in December 2017. The hearing sought to answer the
question at the center of Omorhienrhien’s request for a hard-
ship waiver—whether he married Harris in good faith and
not for the purpose of obtaining an immigration benefit.
Omorhienrhien testified about his relationship with Har-
ris. He explained that he was married in Nigeria but believed
that the relationship had legally dissolved before he left for
the United States. Once he arrived, his cousin introduced him
to a friend, Pretty Hunt, and Omorhienrhien moved into her
basement. Hunt introduced him to one of her coworkers,
Linda Harris, and the two began a relationship in July 2008.
Omorhienrhien proposed to Harris just a few months later so
that they could live together without running afoul of his re-
ligious beliefs. At that point, Harris occasionally stayed with
Omorhienrhien at Hunt’s home.
The couple married in December 2008 in a ceremony at-
tended by a few friends. After learning of the Nigerian mar-
riage complication, they remarried in June 2010. Omorhi-
enrhien testified that he loved Harris and married her for that
reason alone. He added that he lived with Harris in Hunt’s
home after their first wedding. For some of that time, Harris’s
daughter and grandsons lived with them. But in March 2011,
Harris left and later asked for a divorce. Omorhienrhien was
not certain what spurred the split.
The government did not buy Omorhienrhien’s account
and challenged it with documents that seemed to contradict
that he and Harris lived together from December 2008 to
March 2011. In the decree dissolving his marriage to Harris,
the issuing court found that the parties “were married on De-
cember 2, 2008 and they have been separated since July 2009.”
When asked for an explanation, Omorhienrhien claimed the
No. 19-2175 5
dissolution decree was false. But the government had more—
a lease in Harris’s name for March 2010 to the end of February
2011. The lease not only named her alone (at an address other
than Hunt’s) but also had appended to it a rental application
in which Harris stated she was single and expected her only
visitor to be her grandchild. Omorhienrhien explained this
discrepancy by positing that Harris probably signed the lease
for her daughter.
Two other witnesses testified at the hearing. Both said that
they had attended Omorhienrhien and Harris’s wedding, had
seen the couple together at Hunt’s home, and perceived them
to be a genuine married couple. Omorhienrhien also submit-
ted documents like family photographs, statements from
friends, and medical records for Harris’s grandchild.
Following the hearing, the immigration judge found that
Omorhienrhien had not shown that his marriage was bona
fide and denied him a waiver of the requirements necessary
for success on his petition to remove the conditions on resi-
dency. In doing so, the judge noted that she believed Omorhi-
enrhien had testified credibly, by which she meant he pro-
vided information “to the best of his knowledge and recollec-
tion.” From there the judge emphasized inconsistencies in the
record with respect to Omorhienrhien and Harris’s living ar-
rangement and separation. The judge also found troubling the
lack of any objective evidence—including, for example, insur-
ance policies, home ownership documents, and travel tick-
ets—demonstrating that Omorhienrhien and Harris married
with the intent to share a life together.
Omorhienrhien then sought review by the Board of Immi-
gration Appeals. The Board dismissed the appeal because it
agreed with the immigration judge that Omorhienrhien had
6 No. 19-2175
not met his burden to prove that his marriage to Harris was
in good faith. The Board added a cramped and confused in-
terpretation of the immigration judge’s credibility finding. It
acknowledged that the judge found Omorhienrhien credible
but clarified that it did not understand her to credit all of his
testimony. The Board did not explain how those two things
could be reconciled.
Omorhienrhien now petitions for our review.
II
A
Congress has imposed tight restraints on our authority to
review discretionary immigration decisions, generally re-
moving them from our jurisdiction. See 8 U.S.C.
§ 1252(a)(2)(B)(ii). The Board’s denial of Omorhienrhien’s ap-
plication for a good-faith marriage waiver is one such deci-
sion. See Boadi v. Holder, 706 F.3d 854, 857 (7th Cir. 2013). The
narrow jurisdiction we do possess extends only to constitu-
tional claims and legal questions. See 8 U.S.C. § 1252(a)(2)(D).
In that limited endeavor to correct legal errors, we review the
immigration judge’s opinion as supplemented by the Board’s.
See Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).
Omorhienrhien insists that he raises a question of law—
the immigration judge applied too high a standard of proof.
All agree that Omorhienrhien bore the burden of proving by
a preponderance of the evidence that he married Harris in
good faith, and the immigration judge expressly adopted that
standard. Omorhienrhien’s point is more subtle. He argues
that the judge, although saying the preponderance standard
applied, proceeded to review the evidence and make findings
under a more demanding standard. While we follow
No. 19-2175 7
Omorhienrhien’s argument just fine, it comes dangerously
close to inviting us to step into the forbidden territory of re-
viewing the immigration judge’s factual determinations. Our
review must remain more limited: we look only at whether
the immigration judge applied the correct legal standard.
B
Omorhienrhien takes his cue from Lara v. Lynch, 789 F.3d
800 (7th Cir. 2015), where an immigrant succeeded in his
quest for review under the same argument but different cir-
cumstances. Gerardo Hernandez Lara stood in a similar pro-
cedural posture as Benjamin Omorhienrhien. Lara had re-
ceived conditional residency through his wife, a United States
citizen, and the two jointly filed the petition to remove the
conditions. See id. at 801–02. Lara’s wife likewise left him be-
fore it came time for the couple to fulfill the joint-interview
requirement. Like Omorhienrhien, Lara then sought a waiver
of the requirement by showing that his marriage had been in
good faith. See id. at 802.
The similarities end there. Lara testified that he married
his ex-wife because he loved her, and the government did not
submit any opposing evidence—literally none. See id. at 803.
The immigration judge nevertheless denied Lara’s petition for
a waiver, finding that his testimony was neither sufficiently
detailed nor consistent with some of his documentary evi-
dence. See id. at 804. The judge did not make a credibility de-
termination. On appeal the Board assumed that Lara’s testi-
mony was credible but from there concluded that Lara’s ac-
count was itself insufficient to meet the preponderance of ev-
idence standard. See id.8 No. 19-2175
When Lara’s case arrived to our court, we granted his pe-
tition for review because the Board “applied too high a bur-
den of proof.” Id. Our reasoning was as straightforward as the
record evidence: with no opposition from the government,
Lara testified that he married his wife because he loved her—
not to obtain an immigration benefit—and “[i]f, as the Board
assumed, [Lara] testified truthfully, then this testimony alone
is enough to prove that his marriage to [his ex-wife] was more
likely than not bona fide.” Id. We therefore held “[t]he Board’s
failure to reach that conclusion is a legal error.” Id. at 805.
C
This case is not Lara. The immigration judge saw two key
distinctions, and both are spot-on.
First, unlike in Lara, where the government offered no ev-
idence whatsoever to challenge the legitimacy of the mar-
riage, see id. at 803, here the government presented evidence
that conflicted with and discredited Omorhienrhien’s testi-
mony. Take, for example, Omorhienrhien’s testimony that he
and Harris lived together from December 2008 to March 2011.
The government responded by presenting a lease for an apart-
ment in Harris’s name that began in March 2010, when she
was supposedly living with Omorhienrhien. The immigration
judge in Lara’s case had to decide whether his testimony, un-
challenged by any objective evidence from the government,
met the bar for relief. But here the immigration judge weighed
the evidence and found that contradictory documents under-
mined Omorhienrhien’s testimony. More to it, the judge de-
termined that absent additional corroborating evidence,
Omorhienrhien’s testimony fell short of establishing by a pre-
ponderance that he married Harris in good faith. We do not
have the jurisdiction to second-guess that weighing of
No. 19-2175 9
evidence. See Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.
2008) (“[A] disagreement with the weight assigned by the im-
migration courts to particular evidence does not present a
question of law.”).
So, too, is there a second difference with Lara. The REAL
ID Act provides that “[w]here the immigration judge deter-
mines that the applicant should provide evidence which cor-
roborates otherwise credible testimony, such evidence must
be provided unless the applicant demonstrates that the appli-
cant does not have the evidence and cannot reasonably obtain
the evidence.” 8 U.S.C. § 1229a(c)(4)(B). In Lara, neither the
Board nor the immigration judge faulted the petitioner for
failing to come forward with available corroborating evi-
dence. See 789 F.3d at 806. Not so here.
The immigration judge voiced a concern over “the com-
plete lack of objective evidence” and identified a laundry list
of documents that might have assuaged the unease—some-
thing even as simple as a ticket showing that Omorhienrhien
and Harris went on a vacation together. Omorhienrhien con-
tends that he had no access to any such evidence. By way of
example, he states he had an informal living arrangement in
someone’s basement, leaving him without a lease to give the
judge. But Omorhienrhien offers no explanation for why he
could not provide the immigration court with the other spe-
cific examples of missing corroborating evidence. The immi-
gration judge thought it surprising, for instance, that Omorhi-
enrhien lacked any evidence from a community or religious
organization, given that he was a preacher and said he and
Harris attended church together. On this record, we cannot
say that the judge’s conclusion that Omorhienrhien lacked
available corroborating evidence was unreasonable. See
10 No. 19-2175
8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination
made by a trier of fact with respect to the availability of cor-
roborating evidence … unless the court finds … that a reason-
able trier of fact is compelled to conclude that such corrobo-
rating evidence is unavailable.”).
In the end, then, what was true for Lara is not for Omorhi-
enrhien. The immigration judge here applied the correct
standard of proof, both in word and in substance. Finding no
legal error and lacking the authority to go beyond that bound-
ary, we DENY the petition for review.