Bassam Hanna v. Loretta Lynch

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1365
BASSAM GERGES HANNA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 22, 2016 Decided: April 12, 2016
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition for review denied by unpublished opinion. Senior Judge
Davis wrote the opinion, in which Judge Wynn and Judge Diaz
concurred.
ARGUED: Soulmaz Taghavi, FAYAD LAW, PC, Henrico, Virginia, for
Petitioner. Alison Marie Igoe, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Tamar
Jones, FAYAD LAW, PC, Richmond, Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Christopher C. Fuller, Deputy Chief, National
Security Unit, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Senior Circuit Judge:
Following a removal hearing, an immigration judge (“IJ”)
found Petitioner Bassam Gerges Hanna, a national of Lebanon and
a permanent resident of the United States, removable for being
inadmissible at the time of his adjustment of status under
Section 237(a)(1)(A) of the Immigration and Nationality Act
(“INA”) (codified at 8 U.S.C. § 1227(a)(1)(A)), and for
committing marriage fraud under Section 237(a)(1)(G)(ii) of the
INA (codified at 8 U.S.C. § 1227(a)(1)(G)(ii)). In this timely
petition for review, Hanna argues that the IJ erred in three
distinct respects: (1) in finding that the government satisfied
its burden of proving removability by clear and convincing
evidence; (2) in depriving him of due process insofar as the IJ
admitted into evidence a sworn statement by his ex-spouse while
not procuring the ex-spouse’s presence at the removal hearing,
thereby failing to make her available for cross-examination; and
(3) in excluding evidence bearing on the government’s alleged
motive in seeking his removal. We discern no error and deny the
petition for review.
I.
Hanna originally entered the United States from Lebanon in
1985 as a B-2 non-immigrant for pleasure. Beginning in 1994,
Hanna operated a convenience store and then worked in used car
3
sales in North Carolina. On May 15, 2001, Hanna married Amy
Williford at a Raleigh, North Carolina courthouse.
The dispositive factual and legal issue at the removal
hearing before the IJ was whether the government proved by clear
and convincing evidence that the marriage was fraudulently
entered into in order to provide Hanna with an immigration
benefit. The IJ so found in a comprehensive written opinion, and
the Board of Immigration Appeals (“BIA”) sustained the IJ’s
conclusion. The conflicting evidence bearing on the question is
summarized below.
A.
The government sought to make its case for removability by
calling two witnesses, Hanna and Department of Homeland Security
(“DHS”) Agent Christopher Brant, coupled with the introduction
of several exhibits, including numerous documents from Hanna’s
immigration file that had been executed by Hanna and Williford.
Hanna offered his own testimony, together with affidavits from
three of his friends who affirmed they spent time with the
couple during the marriage, in support of his contention that
his marriage to Williford was entirely bona fide, if troubled.
In its totality, the testimonial and documentary evidence tended
to establish the following factual and procedural course of
events.
4
1.
In 2008, as part of a larger money laundering
investigation, Agent Brant commenced an investigation into the
export of certain vehicles to Africa and the Middle East,
focusing on the principals, including Hanna, of an enterprise
known as Cary Auto Sales located in Cary, North Carolina. While
reviewing Hanna’s immigration records, Agent Brant discovered a
“tip line call” from January 23, 2007, indicating that Hanna
might have engaged in marriage fraud. Upon Agent Brant’s review
of Hanna’s and Williford’s motor vehicle records, his suspicions
were aroused when he compared the address changes in Williford’s
DMV records with the dates and addresses reported in documents
from Hanna’s immigration file. Specifically, Agent Brant
uncovered two inconsistencies. First, he noticed that Williford
had changed her claimed addresses to Hanna’s addresses days
prior to Hanna’s immigration interviews, and then had changed
her addresses to her mother’s addresses following the
interviews. Agent Brant had seen this behavior in other cases,
and it was indicative of fraud. Second, when Williford was
charged with speeding in February 2003, during a period when she
and Hanna were ostensibly living together, she gave law
enforcement officers her mother’s address in Siler City, North
Carolina.
5
Agent Brant sought to question Williford about the apparent
discrepancies. Williford originally declined to speak with him,
but she later agreed to do so with her lawyer present. In a
sworn statement, Williford confessed to Agent Brant that she had
married Hanna for financial remuneration in return for assisting
Hanna with his immigration status. 1 Regarding Williford’s
admissions to Agent Brant contained in the statement he took
from her, Hanna testified at the removal hearing that Williford,
believing he was very wealthy, had demanded $1,000,000 from him,
which he had refused to pay. Therefore, he surmised, she had
provided the statement to Agent Brant as a form of revenge.
2.
The details of Williford’s motor vehicle record, as well as
Hanna’s immigration file and removal hearing testimony,
ultimately justified Agent Brant’s suspicions. In a 2001
biographic information form from his immigration file, Hanna had
1
In her sworn statement, Williford attested that the
statement was true and was being given freely and voluntarily.
She stated that the wedding was witnessed by two strangers who
were also getting married at the courthouse. There were no
pictures and, while her mother knew about the wedding, her
father did not. She stated that she and Hanna did not go on a
honeymoon and did not consummate the marriage. Hanna paid her
$1,000 at the time of the wedding and $1,000 at the time of the
divorce, and he also gave her a 1989 Honda Accord. She stated
that she had married Hanna for the money and to assist him in
adjusting his immigration status. The couple never lived
together.
6
stated that he lived in Madison, New Jersey, from January 2001
to May 2001. This assertion arguably conflicted with Hanna’s
removal hearing testimony that he and Williford had dated for
several months in early 2001 in North Carolina, just prior to
their May 2001 wedding. On August 14, 2001, soon after the
wedding, Williford filed a Form I-130 Petition for Alien
Relative with U.S. Citizenship and Immigration Services
(“USCIS”), seeking a visa for Hanna on the basis that he was now
a relative of a U.S. citizen. In the I-130 petition, Williford
asserted that she and Hanna lived together on West Skylark Drive
in Cary, North Carolina. She had changed her address at the DMV
to West Skylark Drive two months prior to filing the I-130
petition. On September 24, 2001, Hanna filed a Form I-485
Application to Register Permanent Resident or Adjust Status with
the USCIS. In the I-485 application, Hanna asserted that he
qualified for permanent resident status because he was married
to a U.S. citizen and Williford’s I-130 petition had been
approved. He also asserted, falsely, that he had never been
charged with any crimes, as he had in fact been convicted of
larceny. In March 2002, just six months after Hanna filed the I-
485 application, Williford changed her address at the DMV to her
mother’s home on Derry Down Lane in Apex, North Carolina.
During a USCIS interview near the middle or end of 2002,
Hanna had denied any criminal convictions. At the removal
7
hearing, Hanna testified that he was unaware that he had not
disclosed the criminal charges in the I-485 application; he
thought that he had provided his criminal record to be added to
his immigration file but did not recall when. He also stated
that he and Williford lived together on Shady Meadow Circle in
Cary, North Carolina. According to her DMV records, Williford
changed her address to Shady Meadow Circle two days before the
interview. In March 2003, just a few months after the interview,
Williford changed her address again to her mother’s new house in
Siler City, North Carolina. That change was consistent with a
speeding ticket that Williford received in February 2003, which
also listed her mother’s Siler City address.
During the removal hearing, Hanna addressed Williford’s
frequent address changes, testifying that Williford lived with
her mother while they dated, but that he and Williford lived
together most of the time during the marriage. Williford would
frequently leave their home following arguments to live
temporarily at her mother’s home, sometimes for weeks or months
at a time.
Other evidence further indicated an atypical matrimony.
According to Hanna’s removal hearing testimony, he met Williford
in 1996 as his convenience store, called Cary Beverage, was
located next to a mechanic shop operated by Williford’s aunt and
uncle. He and Williford started dating in early 2001 and had
8
dated for three or four months by the time they wed, but they
“really did not get officially engaged.” A.R. 141. He asked her
to marry him in or about February or March 2001. No friends or
family accompanied them to the courthouse for the wedding
because, although Williford’s mother offered to come, members of
his own family could not come and so he told Williford’s mother
not to attend. He testified that he married Williford because he
loved her and denied that he offered to pay Williford for the
marriage. They bought their wedding rings at the mall and then
honeymooned in Myrtle Beach a few weeks after the wedding.
During the marriage, Hanna made eight trips to Lebanon,
most of them for more than four weeks; Williford did not join
him on any of the trips because, according to Hanna, she was
unnerved by the war in Lebanon. Williford never met Hanna’s
parents but had spoken to them by telephone, and she knew
Hanna’s two brothers who lived in North Carolina.
According to Hanna’s removal hearing testimony, in March
2006, Williford told Hanna that she wanted a divorce. Hanna
filed for divorce employing a lawyer selected by Williford, but
Williford did not respond to or appear in the divorce
proceedings. When Hanna signed the divorce paperwork at the
lawyer’s office, and when the divorce was granted in October
2006, he affirmed that he and Williford had been separated for a
year. In other words, he affirmed that they had been separated
9
since at least October 2005 and not only as of March 2006. In
addressing this apparent inconsistency, Hanna testified at the
removal hearing that he did not know that he had affirmed they
had been separated for a year because he signed the divorce
documents without reading them.
On July 25, 2007, Hanna filed a second N-400 Application
for Naturalization (the first having been denied). In the 2007
application, Hanna asserted that he had lived on Buckland Mills
Court in Cary, North Carolina, since June 2006, and that he had
lived there with his wife until she moved out before the
divorce, statements that compounded the earlier discrepancies
about Williford’s address and their date of separation. He also
disclosed his 1995 misdemeanor larceny conviction. Consequently,
his second N-400 application was denied on the ground that he
had failed to disclose the conviction on his earlier I-485
application and falsely testified that he had never been
convicted of a crime during his adjustment interview in October
2002.
B.
On September 29, 2011, based on Agent Brant’s findings, the
DHS served Hanna with a notice to appear, charging him with
being inadmissible at the time of adjustment of immigration
status under Section 237(a)(1)(A) and marriage fraud under
Section 237(a)(1)(G)(ii). Because Hanna denied that he had
10
entered into a fraudulent marriage, a contested removal hearing
was held before an IJ on April 5, 2013.
Prior to the removal hearing, Hanna filed a motion in
limine seeking to admit evidence that the removal proceedings
were initiated in bad faith and only because the DHS and the
Department of Justice had failed in several attempts to charge
him with terrorism related activity. He also wished to show that
Williford’s sworn statement was coerced or motivated by revenge.
The IJ denied the motion in limine, concluding that there was no
evidence of “malfeasance by the DHS in placing [Hanna] in
removal proceedings” and that the investigations that gave rise
to the removal proceedings were not relevant to the substantive
removability issues. A.R. 93.
On July 17, 2013, the IJ issued a 14-page decision
sustaining the charges of removability against Hanna. The IJ
first evaluated each witness’s credibility. The IJ explained
that he found Hanna’s testimony not credible based on a number
of internal inconsistencies and on the basis that some of his
testimony was simply implausible, e.g., that he dated Williford
while she lived in North Carolina and he lived in New Jersey.
The IJ found Agent Brant’s testimony credible given his
credentials and that his testimony was consistent with other
evidence.
11
Ultimately, the IJ concluded that the DHS had shown by
clear and convincing evidence that Hanna entered into a
fraudulent marriage to benefit his immigration status. The IJ
found the circumstances surrounding the courthouse wedding
suspect, given that no family or friends attended, Hanna
purportedly lived in New Jersey during the courtship, and the
wedding occurred a mere two months after his extant immigration
status in the United States had expired.
The IJ specifically found that the couple had not
continuously lived together before the alleged separation and
that the constant changes of addresses before important
immigration dates, and the inconsistencies of Williford’s home
address on legal documents, also indicated that the marriage was
fraudulent. The IJ found that Hanna’s frequent and lengthy trips
abroad without his spouse also evidenced the lack of bona fides
in the marriage.
As for Williford’s sworn statement, the IJ noted that Agent
Brant gave her the opportunity to review the statement and make
changes. Although Williford was not present at the removal
hearing, the IJ concluded that the statement was relevant based
on the totality of the record. The IJ, however, gave the
statement reduced weight because Williford was not subject to
cross-examination.
12
Finally, the IJ concluded that Hanna had failed to rebut
the DHS’s showing that he is removable. Hanna submitted
affidavits by three of his friends that described the nature of
Hanna’s marriage, but the IJ did not find the affidavits
reliable because the witnesses were biased, the affidavits were
dated after the marriage was called into question, and some of
the witnesses’ descriptions of the marriage conflicted with
Hanna’s removal hearing testimony. For example, one affiant
claimed that Hanna and Williford had been dating for “several
years” and were seen as a couple as early as 2000. A.R. 248. The
IJ also gave the affidavits limited weight because none of the
affiants testified at the removal hearing. Moreover, although
bank statements showed that Hanna and Williford were joint
account holders, none of the checks drawn on the account
contained Williford’s printed name or signature, thus supporting
the inference that the couple was “married . . . in name only.”
A.R. 100.
Hanna appealed the IJ’s decision to the BIA. The BIA agreed
with the IJ that the DHS had proved by clear and convincing
evidence that Hanna “failed to fulfill his marital agreement
with his ex-wife, and that he obtained his lawful permanent
residence through fraud or willful misrepresentation of material
fact.” A.R. 5. It also agreed that Hanna’s evidence of a bona
fide marriage was insufficient to rebut the DHS’s evidence and
13
that the IJ had not erred or abused his discretion in his
evidentiary rulings. On March 17, 2015, the BIA dismissed his
appeal. This timely petition for review followed.
II.
A.
When “the BIA adopts the IJ’s decision and includes its own
reasons for affirming, we review both decisions.” Djadjou v.
Holder, 662 F.3d 265, 273 (4th Cir. 2011) (quoting Marynenka v.
Holder, 592 F.3d 594, 600 (4th Cir. 2010)). We must uphold the
agency’s decision unless it is “manifestly contrary to the law
and an abuse of discretion.” Id. (quoting Lizama v. Holder, 629
F.3d 440, 444 (4th Cir. 2011)); see also 8 U.S.C.
§ 1252(b)(4)(C). The agency abuses its discretion “if it failed
to offer a reasoned explanation for its decision, or if it
distorted or disregarded important aspects of the applicant’s
claim.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).
We review the agency’s factual findings under a “narrow and
deferential” standard. Djadjou, 662 F.3d at 273 (citing Dankam
v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007)). “We seek to
ensure that the agency’s factual findings are supported by
substantial evidence,” which is evidence that “exists to support
a finding unless the evidence . . . was such that any reasonable
adjudicator would have been compelled to conclude to the
contrary.” Id.; see also 8 U.S.C. § 1252(b)(4)(B).
14
Legal contentions raised in the immigration context,
including those alleging a denial of due process, are reviewed
de novo. Xing Yang Yang v. Holder, 770 F.3d 294, 302 (4th Cir.
2014); Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th
Cir. 2004).
B.
Hanna contends that (1) the government failed to satisfy
its burden of proving removability by clear and convincing
evidence; (2) the admission into evidence of Williford’s sworn
statement without procuring her presence at the removal hearing
so that she could be cross-examined deprived him of due process;
and (3) the exclusion of evidence bearing on the government’s
alleged motive in seeking his removal deprived him of due
process. We consider each of these issues in turn.
1.
Preliminarily, the government argues that Hanna has waived
any argument as to whether the DHS proved by clear and
convincing evidence that Hanna was subject to removal. The
government argues that this is so because Hanna failed to
address his burden to show that no “reasonable person would have
been compelled” to reach the same result. Appellee’s Br. 25, 30.
We reject this contention. In his opening brief, Hanna argues
that the totality of the evidence “does not prove a fraudulent
marriage by clear and convincing evidence.” Appellant’s Br. 18.
15
Although he does not use the magic words, he, in essence,
launches the appropriate argument and thus should not be
penalized by elevating form over substance.
In any event, we have no hesitation in concluding that the
IJ’s findings and decision, as adopted by the BIA, were
thorough, well reasoned, and supported by substantial evidence,
and that the IJ satisfactorily identified the bases for the
conclusion that he was persuaded clearly and convincingly that
the marriage was fraudulent. No reasonable person would have
been compelled to reach a different result.
Hanna and Williford were married only two months after
Hanna’s lawful immigration designation expired. That no family
or friends attended the wedding, and that there were no photos
taken, suggests that Hanna and Williford did not view the
ceremony as a solemn and special occasion as would most
genuinely married couples. Although Hanna testified in a way
that, if believed, might explain these circumstances, on the
whole record, the IJ was not bound to credit that testimony, as
he did not.
Hanna testified that he and Williford had only dated a few
months, which by itself does not erect a badge of fraud.
Nevertheless, the IJ permissibly discredited Hanna’s testimony
that the courtship was genuine in light of the fact that during
this brief courtship in early 2001, the records show that Hanna
16
was living in New Jersey while Williford lived in North
Carolina.
The record shows that Williford changed her address
multiple times, assertedly living in two different places at the
same time, particularly in advance of significant immigration
dates. For example, on October 23, 2002, two days prior to a
scheduled immigration interview, Williford changed her address
at the DMV to the Shady Meadow Circle residence, where Hanna had
claimed they lived. Months later, however, in February 2003, in
response to a traffic citation, Williford claimed that she lived
at her mother’s address in Siler City. She officially changed
her address to Siler City at the DMV the following month. In the
same vein, Hanna testified that he and Williford separated in
March 2006 but then noted in his naturalization application that
they lived together in June 2006, and he noted in the divorce
proceedings that they had been separated since at least October
2005.
Hanna attempted to reconcile these and similar
discrepancies by testifying that Williford often left for weeks
at a time following disagreements and chose not to accompany him
on lengthy trips abroad. The IJ permissibly discounted the
probative value of this testimony, just as he discounted Hanna’s
assertion that he, a businessman with more than a middling
competence in the English language, did not read the divorce
17
paperwork before signing it. Of course, the IJ also permissibly
considered the impeaching effect of Hanna’s failure to disclose
his criminal history, a conviction for larceny, on earlier filed
immigration documents. 2
Indeed, given the binary nature of the question before the
IJ, Hanna’s false or implausible testimony, which the IJ
permissibly characterized as “evasive[],” A.R. 95, did more harm
than good. He intended his testimony to show that the marriage
was genuine, but it actually tended to show that the marriage
was not. No reasonable person reviewing the totality of the
evidence in this record, in combination with the IJ and BIA’s
credibility determinations, would be compelled to conclude that
the marriage was bona fide. Accordingly, we conclude that the
government’s showing was sufficient to enable the IJ to find by
2Other evidence probative of the fraudulent character of
the marriage was likewise permissibly weighed by the IJ. While
the couple purportedly shared bank accounts at Wachovia, all of
the checks that Hanna produced bore only his name and signature.
Hanna could not explain why, if Williford wanted the divorce as
he claimed, she did not respond to the divorce complaint or
appear for the divorce proceedings. He also could not explain
why Williford’s address was altered on her pay stubs to conceal
that her employer recorded her address at her mother’s residence
throughout 2002, the year after their wedding. In other words,
there were several inconsistences apparent in the pertinent
documents from the Hanna immigration file presented during the
removal hearing, and the only evidence to rebut them was Hanna’s
confusing and questionable testimony. Meanwhile, Agent Brant’s
testimony and Williford’s sworn statement were consistent with
and supported by the exhibits.
18
the clear and convincing standard that the marriage was
fraudulently entered into.
2.
Hanna next argues that the IJ denied him due process when,
having admitted Williford’s sworn statement, the IJ failed to
compel Williford to attend the removal hearing and testify,
thereby depriving Hanna of an opportunity to cross-examine her.
We conclude that Hanna suffered no cognizable prejudice from
Williford’s unavailability for cross-examination. 3
“The immigration judge may receive in evidence any oral or
written statement that is material and relevant to any issue in
the case previously made by the respondent or any other person
during any investigation, examination, hearing, or trial.” 8
C.F.R. § 1240.7(a). Moreover, immigration judges have the power
to “interrogate, examine, and cross-examine aliens and any
witnesses.” Id. § 1003.10(b). Because the Federal Rules of
3 Upon Hanna’s testimony that Williford had attempted
unsuccessfully to, in effect, “extort” $1,000,000 from him as
the reason for her adverse admissions, see supra p. 6, the DHS
attempted to procure Williford’s voluntary presence during a
continuance of the removal hearing granted at its request by the
IJ. See A.R. 213-15. The DHS was unable to get her to testify.
The record is silent as to why Williford refused to appear
voluntarily, why she was not subpoenaed, or whether she needed
or required, or was offered or enjoyed if she did, prosecutorial
immunity for her role in the events at issue. Our resolution of
the questions presented does not require us to explore any such
issues.
19
Evidence do not apply in immigration proceedings, challenges to
evidentiary determinations are limited to due process
considerations. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir.
2008) (citing Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th
Cir. 2006)). To show a due process violation, the petitioner
must establish that: (1) a defect in the proceeding rendered the
proceeding fundamentally unfair and (2) the defect prejudiced
the outcome of the case. Id.
Williford’s information obviously was highly relevant and
her statement was admissible because it directly related to
whether the marriage was fraudulent. We discern no lack of
reliability in the circumstances surrounding the taking of the
statement by Agent Brant. Agent Brant testified under oath as to
his conversation with Williford before she gave the statement,
that she gave the statement with her attorney present, and that
she was given the opportunity to review the statement and make
corrections. No independent evidence contradicted or undermined
anything contained in the sworn statement, and significantly,
the IJ specifically noted that he gave the statement limited
weight because Williford was not subject to cross-examination.
While the opportunity to cross-examine a witness “is even
more important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might
be perjurers or persons motivated by malice, [or]
20
vindictiveness,” such as ex-spouses, Ching v. Mayorkas, 725 F.3d
1149, 1158 (9th Cir. 2013) (quoting Goldberg v. Kelly, 397 U.S.
254, 270 (1970)), the risk of erroneous deprivation is less
present when there is substantial independent evidence that the
marriage is fraudulent. Indeed, “[d]ue process is flexible and
calls for such procedural protections as the particular
situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). It “is
not a technical conception with a fixed content unrelated to
. . . [the] circumstances.” Id. (quoting Cafeteria & Rest.
Workers v. McElroy, 367 U.S. 886, 895 (1961)). Given the
totality of the evidence here, and the substantial evidence
(apart from the Williford statement) that the marriage was
fraudulent, there is no basis to conclude that the failure to
cross-examine Williford, and the limited weight afforded to her
statement, was fundamentally unfair.
We also fail to see how Hanna was prejudiced by Williford’s
absence. Even without the sworn statement, there was sufficient
unrebutted evidence that the marriage was fraudulent. The IJ
gave several cogent reasons for his conclusion in that regard,
which we will not repeat here. Suffice to say, attempts to show
that the couple lived at the same address or shared the same
assets (the bank accounts) were fraught with inconsistencies and
were themselves self-defeating. Moreover, the IJ found credible
21
Agent Brant’s testimony as to the suspiciousness of the
relationship. Hanna argues, somewhat incongruously, that
Williford’s testimony could have clarified some of the
discrepancies noted in the documentary evidence related to where
she was living and other matters. We fail to see how this is so;
her statement fully explained her motivation for completing the
immigration documents as she did.
Finally, while Hanna’s desire to challenge Williford’s
credibility is perhaps understandable, it is his own credibility
(more particularly, his lack thereof) that sunk this ship. We
defer to an IJ’s credibility findings if those findings are
supported by substantial evidence. Tewabe v. Gonzales, 446 F.3d
533, 538 (4th Cir. 2006) (quoting Camara v. Ashcroft, 378 F.3d
361, 367 (4th Cir. 2004)). If the IJ makes an adverse
credibility finding, the IJ must give “specific, cogent
reason[s] for his [or her] disbelief.” Id. (second alteration in
original) (quoting Camara, 378 F.3d at 367). The IJ should cite,
for example, any “inconsistent statements, contradictory
evidence, and inherently improbable testimony.” Id. (quoting In
re S-M-J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)).
Conversely, an IJ’s credibility determinations are not supported
by substantial evidence if they are “based on speculation,
conjecture, or an otherwise unsupported personal opinion.” Id.
22
(quoting Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en
banc)).
The IJ considered the appropriate factors in determining
Hanna’s credibility. Hanna’s assertions that Williford might
have been coerced and motivated by revenge are not supported by
his own testimony or any other evidence in the record.
Accordingly, we discern no prejudice arising from Williford’s
absence.
3.
Finally, Hanna argues that the IJ erred in denying his
motion in limine, pursuant to which he sought to offer evidence
intended to attack the government’s motive in seeking his
removal. Specifically, Hanna argues that he would have shown
that the DHS targeted him for removal under the mistaken belief
that he was a terrorist. We discern no error.
The exclusion of Hanna’s proposed evidence is governed
under the same standard as the failure to compel Williford to
testify: Hanna must show that the challenged defect (1) made the
proceeding fundamentally unfair and (2) prejudiced the outcome
of the case. Anim, 535 F.3d at 256. Inherent under the first
prong is whether “the evidence is probative.” Id. (quoting
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003)).
Hanna’s argument here fails mainly because he does not show
how evidence of the government’s motive would be relevant to
23
determining whether he was removable on the ground that he
employed a fraudulent marriage in order to obtain an immigration
benefit. The DHS needed to show, by clear and convincing
evidence, that Hanna was removable as charged. 8 C.F.R.
§ 1240.8(a). Once that burden was met, Hanna had “the burden of
establishing that he . . . [was] eligible for any requested
benefit or privilege and that it should be granted in the
exercise of discretion.” Id. § 1240.8(d). The government’s
motive has no bearing on Hanna’s removability, nor does Hanna
assert any benefit or privilege that he would be entitled to
based on any malicious intent by the DHS to selectively pursue
removal against him. See Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 488 (1999) (“As a general matter . . . an
alien unlawfully in this country has no constitutional right to
assert selective enforcement as a defense against his
deportation.”). Indeed, the Supreme Court has cautioned against
questioning the motive of the government in enforcing
immigration laws. See id. at 491 (“The Executive should not have
to disclose its ‘real’ reasons for deeming nationals of a
particular country a special threat . . . and even if it did
disclose them a court would be ill equipped to determine their
authenticity and utterly unable to assess their adequacy.”).
24
In short, there was neither legal error nor an abuse of
discretion in the IJ’s exclusion of motive evidence in this
case.
III.
For the reasons set forth, the petition for review is
DENIED.
25