Fatin Gappy v. Jefferson B. Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0541n.06
No. 16-4334
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 26, 2017
FATIN GAPPY, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney ) APPEALS
General, )
)
Respondent. )
)
BEFORE: BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.
PER CURIAM. Fatin Gappy petitions this court for review of an order of the Board of
Immigration Appeals (BIA) dismissing her appeal from the denial of her motion to reopen
removal proceedings. As set forth below, we deny Gappy’s petition for review.
Gappy is a native and citizen of Iraq. In June 1994, after the Gulf War ended, Gappy left
Iraq and relocated to Jordan to find a better job. Relatives introduced Gappy to United States
citizen Mike Anton, who traveled to Jordan to meet her. They decided to marry, and Anton
returned to the United States and filed a petition for a fiancée visa on Gappy’s behalf. After the
Immigration and Naturalization Service (INS) approved the petition, Gappy entered the United
States as a non-immigrant fiancée in December 1996. Gappy and Anton married in a civil
ceremony in March 1997. Gappy applied to adjust her status, and the INS granted her
conditional permanent resident status based on her marriage to Anton. In March 1998, after one
year of marriage, Gappy and Anton were divorced.
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Gappy v. Sessions
Gappy subsequently petitioned for removal of the conditions on her residence and
requested a waiver from the joint-filing requirement on the basis that she had entered into the
marriage in good faith, but the marriage was terminated. Finding that she had failed to establish
that she married Anton in good faith, the INS denied Gappy’s petition, declined to waive the
joint-filing requirement, and terminated her permanent-resident status.
In June 2001, the INS served Gappy with a notice to appear in removal proceedings,
charging her with removability: (1) for termination of her conditional permanent-resident status,
see 8 U.S.C. § 1227(a)(1)(D)(i); (2) for marriage fraud in that the marriage through which she
obtained her admission was entered into less than two years prior to her admission and was
terminated within two years after her admission, see 8 U.S.C. § 1227(a)(1)(G)(i); and (3) for
marriage fraud in that she failed or refused to fulfill her marital agreement which, in the opinion
of the Attorney General, was made for the purpose of procuring her admission, see 8 U.S.C.
§ 1227(a)(1)(G)(ii). Gappy denied these charges before an immigration judge (IJ). To avoid
removal, Gappy sought review of the INS’s denial of a good-faith waiver and filed an application
for withholding of removal and protection under the Convention Against Torture, claiming that
she would be treated poorly in Iraq because she is a Chaldean Catholic. After a hearing, the IJ
denied Gappy’s request for a good-faith waiver and found her removable as charged. Pointing
out that Gappy and Anton never shared a residence, never consummated the marriage, and had
no shared assets or liabilities, the IJ determined that Gappy had failed to rebut the statutory
presumption that a marriage terminated within two years after admission is fraudulent and found
that she had entered into the marriage for the purpose of obtaining an immigration benefit. The
IJ granted Gappy’s application for withholding of removal based on current country conditions
establishing a pattern and practice of persecution of Iraqi Christians.
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Gappy v. Sessions
Eighteen months later, in July 2008, Gappy filed a motion to reopen her removal
proceedings to apply for asylum pursuant to the Refugee Crisis in Iraq Act. Gappy asserted that
she was eligible for asylum based on changed country conditions, citing attacks by Islamic
extremists against Christians in Iraq and the Iraqi government’s inability to protect the Christian
minority. The IJ initially granted Gappy’s motion to reopen but, after a hearing, reconsidered
and denied the motion. The IJ determined that the Refugee Crisis in Iraq Act did not apply to
Gappy because she had not been denied relief based on a finding of changed country conditions
in Iraq following the ouster of Saddam Hussein. The IJ further found that Gappy had not
presented any evidence establishing sufficient equities to overcome the serious adverse
consequences of her immigration violations. On appeal, the BIA upheld the denial of Gappy’s
motion to reopen on the basis that she had failed to establish prima facie eligibility for asylum.
In October 2014, over four years after the BIA’s order dismissing her appeal, Gappy filed
another motion to reopen her removal proceedings to apply for asylum, asserting that the
conditions for Chaldean Christians in Iraq had significantly worsened since 2007 when she was
granted withholding of removal. The IJ denied Gappy’s motion to reopen. The IJ determined
that the persecution of Chaldean Christians was a continuation of ongoing violence in Iraq rather
than a material change in country conditions. In the alternative, the IJ found that Gappy had
failed to establish that she merited asylum in the exercise of discretion, stating that her marriage
fraud was an adverse factor that outweighed the positive factors presented by her. Gappy
appealed the IJ’s decision to the BIA. Dismissing the appeal, the BIA upheld the IJ’s alternative
denial on discretionary grounds. Upon consideration of the positive equities acquired by Gappy,
the BIA agreed with the IJ that those equities were insufficient to overcome the seriousness of
Gappy’s sham marriage and false application for adjustment of status. The BIA further observed
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Gappy v. Sessions
that there was no current risk of persecution, given that Gappy had been granted withholding of
removal.
This timely petition for review followed. “Where, as here, the BIA issues its own
decision rather than summarily affirming the IJ, the BIA decision is reviewed as the final agency
decision, but the IJ’s decision is also reviewed to the extent that the BIA adopted it.” Harmon v.
Holder, 758 F.3d 728, 732 (6th Cir. 2014). We review the denial of a motion to reopen for an
abuse of discretion. Bi Feng Liu v. Holder, 560 F.3d 485, 489 (6th Cir. 2009). We “will find an
abuse of discretion if the denial of the motion to reopen ‘was made without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible basis
such as invidious discrimination against a particular race or group.’” Id. at 490 (quoting
Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)).
In a case “in which the ultimate grant of relief is discretionary,” the agency may deny a
motion to reopen if “the movant would not be entitled to the discretionary grant of relief.” INS v.
Abudu, 485 U.S. 94, 105 (1988). The discretionary relief of asylum “involves a two-step
inquiry: (1) whether the applicant qualifies as a ‘refugee’ as defined in 8 U.S.C.
§ 1101(a)(42)(A), and (2) whether the applicant ‘merits a favorable exercise of discretion by the
Attorney General.’” Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005) (quoting Perkovic v.
INS, 33 F.3d 615, 620 (6th Cir. 1994)). “[T]he applicant ‘has the burden of establishing that the
favorable exercise of discretion is warranted.’” Kouljinski v. Keisler, 505 F.3d 534, 542 (6th Cir.
2007) (quoting Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987)). In determining whether a
favorable exercise of discretion is warranted, the agency considers the totality of the
circumstances. Id. If the applicant engaged in fraud in seeking admission or status, “the
seriousness of the fraud should be considered.” Matter of Pula, 19 I. & N. Dec. at 474.
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The BIA did not abuse its discretion in upholding the denial of Gappy’s motion to reopen
on the basis that she had failed to satisfy her burden of establishing that she warranted asylum in
the exercise of discretion. In making this determination, the BIA considered all of the equities,
including Gappy’s long residence in the United States, her ties to her lawful-permanent-resident
mother and United States citizen siblings, her employment and tax payment history, her
volunteer work, and her role as the primary caregiver for her aging mother. The BIA went on to
agree with the IJ that Gappy’s equities were “insufficient to overcome the seriousness of her
sham marriage and her false application for adjustment of status to remain in the United States.”
See Htun v. Lynch, 818 F.3d 1111, 1121 (10th Cir. 2016) (“[O]ther circuits to address this issue
have considered marriage fraud a significant negative factor that supported discretionary denial
of asylum.”). Because the BIA considered the totality of the circumstances and provided a
rational explanation for its decision, we can discern no abuse of discretion.
Gappy argues that the BIA abused its discretion in failing to take administrative notice of
the U.S. Department of State Iraq Report on Human Rights Practices for 1996. Gappy contends
that this report puts into context her motivation to engage in marriage fraud to evade persecution
on account of her Christian religion and that the BIA failed to consider whether the seriousness
of her fraud was mitigated by country conditions at that time. But Gappy was not living in Iraq
in 1996. Gappy testified that she left Iraq in 1994 because of the general conditions after the
First Gulf War and that she had no problems practicing her religion in Iraq. The record does not
support her claim that she entered into the sham marriage to evade persecution in Iraq.
Furthermore, Gappy is precluded from relitigating the IJ’s final determinations that she did not
suffer past persecution in Iraq and that she engaged in marriage fraud. See United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 421-22 (1966).
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Gappy also asserts that other circuits have found an abuse of discretion and remanded
cases in which the applicant was granted withholding of removal but denied asylum in the
exercise of discretion. See Shantu v. Lynch, 654 F. App’x 608 (4th Cir. 2016); Zuh v. Mukasey,
547 F.3d 504 (4th Cir. 2008); Huang v. INS, 436 F.3d 89 (2d Cir. 2006); Kalubi v. Ashcroft, 364
F.3d 1134 (9th Cir. 2004); Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999). In those cases, the
applicant initially sought both asylum and withholding of removal and received only
withholding. Here, Gappy applied for withholding of removal only (an asylum application being
untimely), received withholding, and later moved to reopen her removal proceedings to apply for
asylum. This procedural posture distinguishes Gappy’s case. See Patpanathan v. Att’y Gen. of
the U.S., 553 F. App’x 261, 267 (3d Cir. 2014) (“Unlike in Huang, Kalubi, and Zuh, where the
IJs were considering withholding and asylum applications together, Patpanathan had already
received withholding when he moved to reopen his immigration proceedings, and the IJ and BIA
were aware of that. This matters because it speaks to how the IJ and BIA should have
considered the danger of persecution as a positive factor that could outweigh the negative factors
weighing against Patpanathan’s asylum application.” (footnote omitted)). The BIA did not abuse
its discretion in considering that Gappy faced no current risk of persecution, given that she had
been granted withholding of removal.
For these reasons, we DENY Gappy’s petition for review.
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