Yasser Ebrahim v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4433
___________
Yasser Ebrahim, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
___________
Submitted: October 20, 2006
Filed: December 22, 2006
___________
Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
___________
SMITH, Circuit Judge.
Yasser Ebrahim, a native and citizen of Egypt, entered the United States as a
nonimmigrant visitor for pleasure. Ebrahim married a United States citizen and his
nonimmigrant status was subsequently adjusted to that of a conditional permanent
resident. Thereafter, he filed a purported "joint" petition requesting removal of the
conditional basis of his residence. The Immigration and Naturalization Service (INS)1
denied the joint petition and terminated his conditional residence status. Ebrahim later
1
The INS was abolished and its functions assumed by the Department of
Homeland Security on March 1, 2003.
divorced his wife and withdrew the joint petition, acknowledging that the joint
petition contained the forged signature of his ex-wife. He filed a second petition to
remove his conditional status, seeking a waiver of the joint filing requirement under
8 U.S.C. § 1186(c)(4)(B). Ebrahim claimed that he entered the marriage in good faith
and that he would suffer extreme hardship if he were removed from the United States.
The INS denied the waiver request and petition, and the immigration judge (IJ)
affirmed the denial. The Board of Immigration Appeals (BIA) affirmed the IJ's
decision. Ebrahim now petitions for review. We dismiss the petition for lack of
jurisdiction.
I. Background
Ebrahim was admitted to the United States as a nonimmigrant visitor for
pleasure on August 20, 1993. Ebrahim married Tameka Knazze, a United States
citizen, in April 1995; however, they separated after only three months of marriage.
Based on his marriage to Knazze, his nonimmigrant status was adjusted to that of a
conditional permanent resident on September 20, 1995.
On August 18, 1997, Ebrahim filed a joint petition to remove the conditions on
his residence with the INS. The INS sent a letter to Ebrahim's counsel indicating its
intent to deny the joint petition. In response, on April 27, 2000, Ebrahim asked to
withdraw the joint petition, noting that his petition was not "accurate" or "entirely
truthful" and that he and his wife had since divorced.2 The INS, however, denied the
joint petition and terminated Ebrahim's conditional status on May 24, 2000,
concluding that Ebrahim's marriage to Knazze was "an effort to circumvent the
immigration laws of the United States." Specifically, the INS noted Ebrahim's forgery
of Knazze's signature on the petition and on a lease agreement that he submitted to the
INS to demonstrate that he and Knazze lived together.
2
Ebrahim and Knazze divorced on April 11, 2000.
-2-
Before the INS terminated Ebrahim's conditional status, Ebrahim had filed a
second petition with the INS on May 8, 2000. He requested a waiver of the joint-filing
requirement for the removal of conditions under § 216(c)(4) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1186a(c)(4)(A), (B),3 based on his "good faith"
marriage to Knazze and on the ground that deportation would cause him extreme
hardship.
Ebrahim, however, was charged with being removable under §237(a)(1)(D)(i)
of the INA, 8 U.S.C. §1227(a)(1)(D)(i), because the INS terminated his conditional
status. The INS filed an additional charge against Ebrahim under § 237(a)(1)(A) of the
INA, 8 U.S.C. § 1227(a)(1)(A), alleging that he attempted to procure an immigration
benefit under the INA by fraud or willfully misrepresenting a material fact. Ebrahim
conceded at the hearing before the IJ that he was removable because of the termination
of his conditional status but denied that he was removable for attempting to procure
an immigration benefit by fraud or willfully misrepresenting a material fact. For relief
3
Section 1186a(c)(4) provides, in relevant part:
The Attorney General, in the Attorney General's discretion, may remove
the conditional basis of the permanent resident status for an alien who
fails to meet the requirements of paragraph (1) if the alien demonstrates
that—
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated (other than
through the death of the spouse) and the alien was not at fault in failing
to meet the requirements of paragraph (1), or
(C) the qualifying marriage was entered into in good faith by the alien
spouse and during the marriage the alien spouse or child was battered by
or was the subject of extreme cruelty perpetrated by his or her spouse or
citizen or permanent resident parent and the alien was not at fault in
failing to meet the requirements of paragraph (1).
-3-
from removal, Ebrahim renewed his petition, applied for cancellation of removal, and,
in the alternative, sought voluntary departure.
The IJ found Ebrahim removable as charged and denied his applications for
relief. The IJ concluded that Ebrahim was removable as an alien who attempted to
procure an immigration benefit by fraud or willful misrepresentation. With respect to
the second petition, the IJ found that INS properly denied the petition because
Ebrahim failed to establish that he entered into his marriage in good faith.
The IJ's opinion noted that(1) Ebrahim admitted to forging Knazze's signature
on the first petition and on the lease document; (2) Ebrahim applied for and received
credit cards in his name and added Knazze's name to the cards, without her
knowledge, in an attempt to show that they were establishing a life together; (3)
Ebrahim and Knazze had no joint assets, possessed no photographs of one another,
and owned no property together; (4) Knazze never deposited money into the joint
bank account and never wrote checks out of the account; (5) Ebrahim admitted to
primarily keeping his money in a separate bank account; (6) Ebrahim and Knazze
separated after only three months of marriage and had no contact with one another
thereafter; (7) Knazze was not a credible witness; and (8) Knazze exhibited a pattern
of "marrying men from another culture and filing papers on their behalf."
The IJ found that the INS correctly determined that Ebrahim would not suffer
extreme hardship if removed from the United States. The judge also reiterated
concerns about Knazze's credibility and also found that Ebrahim was not credible, as
he had fabricated information to gain a benefit based on forged documents.
Ebrahim appealed to the BIA, arguing that he deserved a waiver because he
entered into his marriage in good faith. The BIA dismissed the appeal, finding no error
in the IJ's conclusion that Ebrahim failed to establish his eligibility for a waiver under
-4-
§ 1186a(c)(4)(B).4 The BIA found, based on the "questionable credibility of the
respondent, and the paucity of objective documentary evidence of the sort
contemplated by the regulations, that the preponderance of the evidence does not
support the respondent's claim that he entered into his marriage for a purpose other
than to secure an immigration benefit."
II. Discussion
On appeal, Ebrahim argues that the IJ erred by (1) failing to properly analyze
whether Ebrahim and Knazze married with an intent to establish a life together; (2)
reaching an adverse credibility finding that was contrary to law; and (3)
inappropriately questioning Knazze's credibility and intent when she married Ebrahim.
Before reaching the merits of Ebrahim's argument, however, we must first
address the government's argument that we are without jurisdiction to review petitions
of the denial of a waiver under 8 U.S.C. § 1186a(c)(4) because the question of
whether a marriage has been entered into in "good faith" is a matter within the
unreviewable discretion of the Attorney General.
4
In affirming the IJ, the BIA stated:
In the instant case, the Immigration Judge noted that the respondent and
his wife had separated after only 3 months of marriage and had almost
no contact thereafter. Furthermore, the Immigration Judge noted the lack
of evidence of any shared property or liabilities. In fact, the respondent
admitted that he fraudulently attempted to create a paper trail by forging
his wife's signature on the joint petition and housing lease, and listing her
as a user on his credit card accounts without her knowledge. Although
there is evidence that the two had a joint checking account, the
respondent admits that it was used very rarely, and his wife never put
any money into it or wrote any checks from it, and that he had his own
separate account (Tr. at 75). The record also reflects that the respondent
lied at the 1999 interview regarding the amount of time he and his wife
had lived together.
-5-
We recently held that we "lack jurisdiction to review questions of fact
underlying discretionary decisions of the Attorney General, 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B), and are thus without jurisdiction to review the denial of the hardship
waiver . . . ." Suvorov v. Gonzales, 441 F.3d 618, 622 (8th Cir. 2006).
In Suvorov, the IJ denied the petitioner's request for waiver of the requirement
that he and his former spouse file a joint petition to remove the conditional basis of
his permanent residence status after "determining that [the petitioner] did not enter
into the marriage in good faith." Id. at 618. In denying the petition for review, we first
recognized that the REAL ID Act (RIDA) prohibits this court from reviewing
discretionary determinations of the Attorney General, such as a denial of waiver under
§ 1186a(c)(4). Id. at 621. We then found that "[w]hether the qualifying marriage was
entered into in good faith by the alien spouse is a discretionary factual determination
of the IJ." Id. Finally, we noted that the IJ, in denying the petitioner's request for
waiver of the joint filing requirement, "weighed the conflicting testimony and other
evidence," making an "adverse credibility determination." Id. at 622.
Here, the IJ, as in Suvorov, determined that Ebrahim was not eligible for waiver
after finding that Ebrahim and Knazze were not credible and, therefore, did not enter
into the marriage in good faith. Therefore, following Suvorov, we lack jurisdiction to
review the denial of the waiver.
III. Conclusion
Because we lack jurisdiction, Ebrahim's petition is dismissed.
______________________________
-6-