Atieh v. Riordan

United States Court of Appeals
For the First Circuit
No. 14-1947
RANIAH FATHI ATIEH and FUAD FAROUQ ATIEH,
Plaintiffs, Appellants,
v.
DENIS C. RIORDAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC for appellants.
Benjamin C. Mizer, Acting Assistant Attorney General, Office
of Immigration Litigation, Civil Division, United States
Department of Justice, William C. Peachey, Director, Colin A.
Kisor, Deputy Director, and J. Max Weintraub, Senior Litigation
Counsel, for appellees.
August 14, 2015
SELYA, Circuit Judge. To borrow a phrase often
attributed to a homespun philosopher, Lawrence "Yogi" Berra, this
case is déjà vu all over again. For a second time, Fuad Farouq
Atieh and his wife Raniah appeal from a district court judgment
affirming a decision of the Board of Immigration Appeals (BIA)
denying Raniah's petition to grant Fuad lawful permanent resident
status. After careful consideration, we affirm.
I. BACKGROUND
Fuad Atieh, a Jordanian national, entered the United
States on a six-month visa in 1992. He overstayed, and roughly a
decade later (on March 17, 2003), he was placed in removal
proceedings by the United States Citizenship and Immigration
Services (USCIS). While those proceedings were pending, Fuad
married his first cousin, Jamileh Khudari (a U.S. citizen), at a
January 2004 ceremony in Lowell, Massachusetts. His new wife
subsequently filed an I-130 visa petition for an alien relative
(here, Fuad). See 8 U.S.C. § 1151(a)(1). The marriage quickly
disintegrated: Fuad and Jamileh divorced on December 12, 2004.
Not surprisingly, Jamileh withdrew her I-130 petition.
In August of 2005, Fuad married Raniah, who was also a
U.S. citizen. Some two months later, Raniah filed an I-130
petition on Fuad's behalf. On March 3, 2006, USCIS interviewed
Fuad and Raniah in connection with that petition. Fuad told the
examining officer that his earlier marriage to Jamileh had been
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arranged by the couple's parents and that he had never been in
love with her. He admitted, though, that he and his parents had
hoped that he might acquire lawful permanent resident status
through Jamileh.
In May of 2006, USCIS issued a notice of intent to deny
the I-130 petition. See 8 U.S.C. § 1154(c). The notice cited the
allegedly fraudulent nature of Fuad's first marriage as the impetus
for USCIS's intended decision and invited the applicants to submit
any additional evidence that they might have in support of their
position. The Atiehs responded by submitting several affidavits,
including affidavits from Jamileh, Jamileh's parents, Fuad's
parents, and Fuad himself. In his statement, Fuad acknowledged
that, prior to marrying Jamileh, he had expressed a romantic
interest in Raniah and had contacted her parents to gain their
approval, only to be rebuffed.
On December 6, 2007, USCIS denied the I-130 petition.
It found, based on the record as a whole, that Fuad's marriage to
Jamileh was designed to evade the immigration laws. This decision
was upheld by the BIA, which concluded that the Atiehs had failed
to prove the bona fides of Fuad's first marriage.
The Atiehs countered by attacking on two fronts. First,
they sued in the federal district court, seeking to set aside the
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BIA's ukase.1 Second, they filed yet another I-130 petition with
USCIS. The district court prudently held the Atiehs' suit in
abeyance pending the agency's adjudication of the new petition.
The Atiehs achieved no better result the second time
around. On March 25, 2010, they received notice of USCIS's intent
to deny their latest petition. The notice explained that
affidavits from various family members showed no compelling
evidence that the marriage between Fuad and Jamileh was either
bona fide or contracted in good faith. Moreover, bank statements
submitted by the Atiehs showed little if any evidence of any
comingling of marital funds between Fuad and Jamileh. Although
the Atiehs objected to this notice, they proffered no additional
evidence and USCIS denied relief on May 5, 2010. The BIA
subsequently affirmed. Undaunted, the Atiehs filed an amended
complaint in their district court suit.
The district court dissolved its earlier stay of
proceedings and, in October of 2012, granted the defendants' motion
to dismiss for failure to state a claim upon which relief could be
granted.2 See Atieh v. Riordan, No. 09-10977, 2012 WL 4498909, at
1The district court had jurisdiction over such a suit
pursuant to the judicial review provisions of the Administrative
Procedure Act (APA), 5 U.S.C. § 706. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
2 The defendants are Denis C. Riordan, Director, Boston
Service Center; Jeh C. Johnson, Secretary, Department of Homeland
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*5 (D. Mass. Oct. 2, 2012); see also Fed. R. Civ. P. 12(b)(6). We
vacated the order of dismissal on procedural grounds, without
reaching the merits. See Atieh v. Riordan, 727 F.3d 73, 77 (1st
Cir. 2013).
Remitted to the district court, the parties cross-moved
for summary judgment on the issue of whether the administrative
record adequately supported the denial of I-130 relief. The
district court granted summary judgment in the government's favor,
thus affirming the BIA's final order.3 See Atieh v. Riordan, No.
09-10977, 2014 WL 3749430, at *1 (D. Mass. July 30, 2014).
II. ANALYSIS
Under the APA, a reviewing court may set aside an
agency's decision if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law," such as
if it is "unsupported by substantial evidence." 5 U.S.C. § 706(2);
see River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st
Security; Loretta E. Lynch, United States Attorney General; Carmen
M. Ortiz, United States Attorney, District of Massachusetts; and
Michael Aytes, Director, USCIS. For ease in exposition, we refer
to them collectively as the government.
3The Atiehs' amended complaint does not distinguish between
the two adverse BIA decisions. The district court determined,
however, that "the denial of the first [I-130] petition was
effectively superseded by the denial of the second petition."
Atieh, 2012 WL 4498909, at *1. The Atiehs have not challenged
this determination, so we focus the lens of our inquiry on the
BIA's denial of the most recent I-130 petition.
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Cir. 2009). This standard is quite narrow: a reviewing court "may
not substitute its judgment for that of the agency, even if it
disagrees with the agency's conclusions." River Street Donuts,
558 F.3d at 114. Consequently, judicial review of agency decisions
is "highly deferential." Id. If the agency's decision is
supported by any rational view of the record, a reviewing court
must uphold it. See id.
Because both the district court and this court are bound
by the same standard of review, our review of the district court's
decision in an APA case is de novo. See Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 144 (1st Cir. 2007). Thus, our review in
this case is, in effect, direct review of the BIA's decision.
With the standard of review in place, we turn to the
Immigration and Nationality Act (the Act). Under the Act, an alien
may achieve lawful permanent resident status if he qualifies as an
"immediate relative" of a U.S. citizen. See 8 U.S.C.
§ 1151(b)(2)(A)(i); see also Taing v. Napolitano, 567 F.3d 19, 21
(1st Cir. 2009). For this purpose, the term "immediate relative"
includes children, parents, and spouses. See 8 U.S.C.
§ 1151(b)(2)(A)(i).
To obtain the benefit of these provisions, an interested
citizen must file an I-130 petition with the Attorney General on
behalf of her immediate relative/alien. See id.
§ 1154(a)(1)(A)(i). Where the immediate relative/alien is a
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spouse, the Act provides for especially careful scrutiny of the
petition. If the Attorney General determines either that the alien
entered into a marriage "for the purpose of evading the immigration
laws" or that the alien "attempted or conspired" to do so, the
alien will be rendered ineligible for lawful permanent resident
status. See id. § 1154(c).
Here, moreover, yet another hurdle must be cleared. When
an alien enters into a marriage after the government has initiated
removal proceedings — as Fuad did — the alien must carry the burden
of demonstrating, by clear and convincing evidence, that he entered
into the marriage in good faith. See id. § 1255(e)(3).
An agency's finding regarding the bona fides of a
marriage is normally regarded as a finding of fact. See Agyei v.
Holder, 729 F.3d 6, 14 (1st Cir. 2013); Krazoun v. Ashcroft, 350
F.3d 208, 210-12 (1st Cir. 2003). Thus, such a finding is reviewed
under the substantial evidence standard. See Agyei, 729 F.3d at
13; Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012). This
means that a court "cannot contravene the agency's factfinding
unless a reasonable adjudicator would be compelled to reach a
contrary conclusion." Agyei, 729 F.3d at 13. Within this rubric,
a credibility determination is a finding of fact; and we will
uphold such a finding so long as the agency "articulate[s] specific
and cogent reasons" to support its view. Ahmed v. Holder, 765
F.3d 96, 101 (1st Cir. 2014).
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This brings us to the Atiehs' arguments on appeal. Their
asseverative array boils down to a plaint that the BIA erred in
concluding that Fuad's first marriage was fraudulent.
Specifically, they argue that the BIA misconstrued certain
evidence, ignored other evidence indicating that Fuad's first
marriage was bona fide, and failed to consider the record in its
entirety. We address these arguments as a seamless whole.
The BIA relied heavily on the trial-level decision of
USCIS, which gave ample scrutiny to the record (including the
interviews with the Atiehs and the various affidavits). Several
key facts led the agency to its conclusion that Fuad's first
marriage was fraudulent. We enumerate some of those facts.
 Fuad married Jamileh only after removal proceedings had been
instituted against him.
 He entered into that marriage notwithstanding a demonstrated
romantic interest in Raniah.
 During his USCIS interview in March of 2006, Fuad acknowledged
not only that his parents had pressured him to marry Jamileh
but also that both he and his parents had hoped that the
marriage would prove to be a vehicle for obtaining lawful
permanent resident status.
 Fuad admitted that he had unsuccessfully pursued a romantic
relationship with his present wife even before he married
Jamileh.
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 The bank statements and other data in the record showed little
or no commingling of funds between Fuad and Jamileh during
their marriage.
These facts, when viewed in concert, were sufficient to support
USCIS's inference that Fuad had never intended to have a lasting
marriage with Jamileh but, rather, had used his first marriage
only as a contrivance to avoid deportation and pave the way for
securing a favorable immigration status. The BIA agreed: it
supportably found that the record, viewed in its totality,
indicated that "[Fuad's] intention all along was to marry [Raniah]
and not remain married to [Jamileh]." There is no principled way
for us to say that the BIA's determination lacked a rational basis.
The BIA marshalled specific reasons for finding Fuad's first
marriage fraudulent and cogently explained its reasoning. No more
is exigible. See Ahmed, 765 F.3d at 101. After all, the agency
is in the best position to gauge the inferences to be drawn from
the facts, see Syed v. Ashcroft, 389 F.3d 248, 251-52 (1st Cir.
2004), and we have no basis here for second-guessing its assessment
of those facts.
This is especially true due to the weight of the burden
that the Atiehs must shoulder. Once the BIA decided the marriage
fraud issue against them, they had an obligation to point to
evidence "'so compelling that no reasonable fact finder could fail'
to find that [Fuad] had a bona fide marriage." Mendes v. INS, 197
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F.3d 6, 13 (1st Cir. 1999) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992)). They have not come close to fulfilling
that obligation.
The Atiehs demur, offering a salmagundi of reasons why
the agency's decision is infirm. None of these reasons is
persuasive.
To begin, the Atiehs argue that the BIA misconstrued
several key pieces of evidence, such as Fuad's statements about
hoping to obtain lawful permanent resident status through his
marriage to Jamileh and his admission about his prior courtship of
Raniah. As to the former, the Atiehs suggest that the involvement
of Fuad's parents in his first marriage proves that this was
intended to be a lasting union. As to the latter, they suggest
that Fuad's initial pursuit of Raniah demonstrated only that he
was "looking for a permanent wife." There may be plausible
interpretations of Fuad's admissions, particularly given the
evidence that the Atiehs submitted describing the cultural norms
surrounding an arranged marriage. As even the BIA acknowledged,
"arranged marriages are not fraudulent per se, so long as the
intent of the parties at the time the marriage was entered into
was to establish a life together." But Fuad's interpretations are
not the only reasonable ones.
This is a critical distinction. Under the deferential
standard of review, we may not disturb the agency's factfinding
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unless "a reasonable adjudicator would be compelled to reach a
contrary conclusion." Agyei, 729 F.3d at 13. That benchmark
cannot be achieved when — as in this case — the raw facts support
competing but reasonable inferences. See Villafranca v. Lynch,
___ F.3d ___, ___ (1st Cir. 2015) [No. 14-1881, slip op. at 4];
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219-20 (1st Cir.
2007).
Next, the Atiehs submit that Fuad's admissions cannot
justify the denial of an I-130 petition because they do not
constitute direct admissions that he is guilty of marriage fraud.
This is pure codswallop: although an admission of guilt is surely
sufficient for a finding of marriage fraud, such an admission is
not a sine qua non for such a finding. See, e.g., Mendes, 197
F.3d at 13 (upholding BIA's finding that alien committed marriage
fraud in the absence of any admission of guilt). It is perfectly
appropriate for an agency to rely on reasonable inferences in
determining the existence vel non of marriage fraud.4
4 In all events, even if particular facts "may not have been
sufficient individually to establish a finding of fraud," those
same facts, when taken together, may provide "ample support" for
an agency to infer a fraudulent marriage. Agyei, 729 F.3d at 15;
cf. Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25,
34 (1st Cir. 2012) (noting, with regard to evidentiary
presentations, that "the whole is sometimes greater than the sum
of the parts").
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We find equally unconvincing the Atiehs' contention that
the BIA should have given greater weight to the affidavits
submitted by Jamileh, Jamileh's parents, and Fuad's parents.
Weighing the evidence is, within wide limits, the exclusive
province of the agency, see Ayeni v. Holder, 617 F.3d 67, 72-73
(1st Cir. 2010) — and those limits have not been exceeded here.
To the contrary, the agency fully discharged its duty by fairly
considering the Atiehs' submissions and "articulat[ing] its
decision in terms adequate to allow a reviewing court to conclude
that the agency has thought about the evidence and the issues and
reached a reasoned conclusion." Raza v. Gonzales, 484 F.3d 125,
128 (1st Cir. 2007). On this record, then, we lack the authority
to "substitute [our] judgment for that of the agency." River
Street Donuts, 558 F.3d at 114.
For essentially the same reasons, we reject the Atiehs'
assertion that the agency erred in failing fully to consider
evidence relating to the post-marriage conduct of Fuad and Jamileh.
The record makes manifest that the agency considered the post-
marriage evidence but found — reasonably, in our view — that this
evidence did not inure to the Atiehs' benefit.
The short of it is that this is a case of dueling
inferences drawn from largely undisputed facts. We have said
before — and today reaffirm — that when the BIA is faced with "two
plausible but conflicting inferences from a body of evidence, the
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BIA's choice between those inferences is by definition supported
by substantial evidence." Ruiz v. Mukasey, 526 F.3d 31, 37 (1st
Cir. 2008). So it is here.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the district court's judgment is
Affirmed.
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