Amartey v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2012
Elisabeth A. Shumaker
Clerk of Court
CHARLES NII AMARTEY,
Petitioner,
v. No. 12-9539
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.
Charles Nii Amartey petitions for review of an order of the Board of
Immigration Appeals (BIA or Board), which denied his application for special-rule
cancellation of removal under 8 U.S.C. § 1229b(b)(2) because he failed to
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
demonstrate that removal would result in extreme hardship to him. Exercising
jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.
Background
Amartey is a native and citizen of Ghana who entered the United States on
May 26, 2003, on a nonimmigrant visitor visa. Rather than exiting the country before
the expiration of his authorized six-month stay, he married a United States Citizen
and remained in the United States. In April 2004, Amartey’s wife filed a visa
petition on his behalf, and he applied to adjust his status to lawful permanent
resident. After interviewing Amartey and his wife, Citizenship and Immigration
Services (“CIS”) suspected that their marriage was fraudulent and referred the matter
for further investigation. Amartey’s wife subsequently withdrew the visa petition,
acknowledging that the purpose of the marriage was so that Amartey could obtain
United States citizenship. CIS ultimately denied the visa petition and adjustment
application in May 2008, on the basis that the marriage was fraudulent.
The Department of Homeland Security (“DHS”) served Amartey with a notice
to appear on June 27, 2008, charging him with removability on two grounds: (1) as
an alien who entered the United States on a nonimmigrant visa and remained longer
than permitted, see 8 U.S.C. § 1227(a)(1)(B); and (2) as an alien who sought to
procure a benefit under the Immigration and Nationality Act (“INA”) by fraud or
willful misrepresentation of a material fact, see id. § 1227(a)(1)(A); 8 U.S.C.
§ 1182(a)(6)(C)(i). At a hearing before an immigration judge (“IJ”), Amartey
-2-
conceded removability on the overstay charge but denied the fraud charge. He also
applied for special-rule cancellation of removal under 8 U.S.C. § 1229b(b)(2),
claiming that he was the battered spouse of a United States citizen.
IJ’s Decision
The IJ found Amartey removable as charged and denied his application for
relief, observing that “this is one of the more significant cases of marriage fraud that
the Court has seen.” Admin. R. at 27. He also found that Amartey was not a credible
witness. But because the BIA or this court might disagree with his credibility
assessment, the IJ proceeded to make findings on the statutory requirements for
special-rule cancellation of removal.
As relevant to this case, § 1229b(b)(2) authorizes the Attorney General, in his
discretion, to cancel the removal of an alien who demonstrates that (1) he has been
battered or subjected to extreme cruelty by a United States citizen spouse; (2) he has
been physically present in the United States for a continuous period of at least three
years before filing his application; (3) he has been a person of good moral character
during that period; (4) he is not inadmissible or deportable under specified sections of
the INA; and (5) “the removal would result in extreme hardship to the alien.”
8 U.S.C. § 1229b(b)(2)(A)(i)-(v). The IJ determined that Amartey failed to establish
that he had been the victim of battery or extreme cruelty. But even assuming that he
had satisfied that requirement, the IJ found that he failed to demonstrate that his
removal would result in extreme hardship to him. Finally, the IJ indicated that he
-3-
would ultimately deny Amartey’s application in the exercise of discretion. The IJ
therefore denied Amartey’s application for special-rule cancellation of removal and
ordered him removed.
BIA’s Decision
Amartey appealed the IJ’s removal order to the BIA. He argued that the IJ
erred in allowing DHS to present evidence regarding its charge of marriage fraud
because DHS failed to disclose the evidence to Amartey before the hearing. The BIA
first affirmed the IJ’s conclusion that Amartey was removable under § 1227(a)(1)(B),
because he failed to contest the charge that he overstayed his nonimmigrant visa.
The Board explicitly did not address or affirm the IJ’s alternative conclusion that
Amartey was removable under § 1227(a)(1)(A), based on a fraudulent marriage. As
to that charge, the BIA stated: “While we have concerns about the DHS’s litigation
strategy with regard to its endeavor to prove marriage fraud, we are unable to
conclude that the respondent has suffered any prejudice as a result of the DHS’s
actions, since we are not reaching any marriage fraud issues.” Admin. R. at 3 n.1.
The BIA next affirmed the IJ’s determination that Amartey failed to
demonstrate that his removal to Ghana would result in extreme hardship to himself,
as required by § 1229b(b)(2)(A)(v). The Board cited the following factors, which the
IJ had also relied on, as supporting its decision: Amartey’s short stay in the United
States; the lack of evidence that he had a health condition that would be adversely
affected by his removal to Ghana; the absence of any risk that his former spouse
-4-
would travel to Ghana to harm him; and Amartey’s educational background and
employment history in Ghana. The BIA noted that Amartey had not asserted that any
of the IJ’s findings were clearly erroneous. It also concluded that any ridicule
Amartey may suffer in Ghana based on his being a victim of domestic violence did
not amount to an extreme form of hardship. After reiterating that it was not
“considering or affirming any of the [IJ’s] determinations relating to marriage fraud,”
the Board found “that the record supports the [IJ’s] conclusion relating to the
respondent’s failure to establish extreme hardship.” Admin. R. at 4. Finally, the BIA
also explicitly stated that it would “not address the issues of credibility, battery,
extreme cruelty, or discretion.” Id.
The BIA therefore dismissed Amartey’s appeal and ordered him removed to
Ghana. Amartey filed a timely petition for review of the Board’s decision.
Discussion
Amartey contends that the IJ violated his due process rights by allowing DHS
to present certain witnesses and evidence during the hearing, and that the BIA erred
in concluding that he did not suffer any prejudice as a result of DHS’s litigation
strategy. More specifically, Amartey contends that, without the improperly admitted
evidence, the IJ may have found him credible and may have relied on his testimony
to determine that he was statutorily eligible for special-rule cancellation of removal
under § 1229b(b)(2). And because the BIA affirmed the IJ’s determination under that
section, Amartey argues that the IJ’s due process violation therefore prejudiced him.
-5-
Because a single member of the BIA affirmed the IJ’s decision in a brief order,
see 8 C.F.R. § 1003.1(e)(5), we review the BIA’s opinion rather than the decision of
the IJ, see Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review
the agency’s factual findings for substantial evidence and its legal determinations de
novo. Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001). We have jurisdiction to
review the BIA’s discretionary determination regarding extreme hardship under
§ 1229b(b)(2)(A)(v) only to the extent that Amartey raises a constitutional claim or a
question of law. See Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.
2003) (holding hardship determination is discretionary decision unreviewable under
8 U.S.C. § 1252(a)(2)(B)(i)); Arambula-Medina v. Holder, 572 F.3d 824, 828
(10th Cir. 2009) (holding court has jurisdiction to review constitutional claims and
questions of law with respect to extreme hardship issue under 8 U.S.C.
§ 1252(a)(2)(D)).
Amartey’s contentions of error are unavailing. He asserts that the IJ violated
his due process rights by considering DHS’s evidence of marriage fraud, and he
claims that the BIA “erred in affirming the IJ’s improper application of legal
standards.” Pet. Br. at 7. But the BIA did not consider or affirm the IJ’s decision to
admit DHS’s evidence. Rather, the Board found that Amartey was removable on the
alternative charge that he overstayed his nonimmigrant visa, a point that he conceded.
The BIA thereafter expressly declined to address any issue related to the IJ’s
-6-
marriage fraud determination, including Amartey’s contention that the IJ violated his
due process rights with respect to that issue.
Amartey argues that the BIA nonetheless erred in concluding that he was not
prejudiced by DHS’s litigation strategy on the marriage fraud issue. He claims that
the IJ relied on the improperly admitted evidence in making his adverse credibility
finding, which in turn affected the IJ’s determination regarding his eligibility for
discretionary relief under § 1229b(b)(2). But the BIA affirmed the IJ’s denial of
relief solely on the basis of Amartey’s failure to demonstrate the requisite hardship
under § 1229b(b)(2)(A)(v). He fails to show that the IJ’s credibility finding or the
evidence he claims was improperly admitted by the IJ played any role in the Board’s
decision. The BIA expressly declined to address the issue of Amartey’s credibility.
Thus, it did not reject Amartey’s evidence of hardship as not credible. To the
contrary, the Board carefully considered the evidence he presented, but concluded
that it was insufficient “to establish that he would suffer hardship that is substantially
different from, or beyond, that which would normally be expected from the removal
of an alien from the United States.” Admin. R. at 4.
-7-
Conclusion
Amartey conceded removability based on overstaying his nonimmigrant visa.
And he has not raised a meritorious constitutional claim or a question of law with
respect to the BIA’s determination that he failed to establish that his removal would
result in extreme hardship. The petition for review is therefore DENIED.
Entered for the Court
David M. Ebel
Circuit Judge
-8-