Hammad v. Holder

• Decision Date: 22 April 2010
• Docket Number: No. 07-72370.,07-72370.
• Citation: 603 F.3d 536
• Parties: Ivad Mohammed HAMMAD, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

603 F.3d 536

Ivad Mohammed HAMMAD, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-72370.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2010.

Filed April 22, 2010.

Michael P. Karr and Lizbeth A. Galdamez, Law Offices of Michael P. Karr & Associates, Sacramento, CA, for petitioner Hammad.

Gregory G. Katsas, Assistant Attorney General, Stephen J. Flynn, Senior Litigation Counsel, Karen Y. Stewart, Attorney, and Ari Nazarov, Attorney, Office of Immigration Litigation, Civil Division, Washington, D.C., for respondent United States.

Before ALFRED T. GOODWIN, MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

In 1995, Ivad Mohammed Hammad, a Palestinian immigrant to the United States, was granted permanent resident status on a conditional basis, based on a petition filed by his U.S. citizen wife. His permanent resident status lapsed when his wife admitted to Immigration and Naturalization Service (INS) officials that she had entered into the marriage for a fee, and withdrew her support of his petition to remove the condition on his residency. Now remarried, Hammad appeals a determination by the Board of Immigration Appeals (BIA) that he is not entitled to permanent resident status. Because the BIA's determination was supported by substantial evidence, we deny his petition.

I

Before discussing the facts of this case, we provide a brief overview of the statutory and regulatory framework that allows an alien to obtain legal permanent residency status based on a petition from the alien's U.S. citizen spouse. See 8 U.S.C. §§ 1154(a), 1186a.

Under § 1154(a), a U.S. citizen may file a petition with the INS¹ to adjust the status of an alien spouse. An alien with a qualifying marriage to a U.S. citizen is generally granted the status of lawful permanent resident, but maintains this status on a conditional basis for a two-year period. § 1186a(a)(1).² At any time before the end of the two-year conditional residency period, the INS may terminate the alien's permanent resident status if it determines that the alien's qualifying marriage is fraudulent, was judicially annulled or terminated, or that a fee or other consideration was paid to the citizen claiming to be a spouse. § 1186a(b)(1);³see In re Stowers, 22 I. & N. Dec. 605, 609 (BIA 1999). If the alien appeals this termination to the BIA, the burden of proof is on the agency "to establish, by a preponderance of the evidence, that the facts and information presented by the alien are not true with respect to the qualifying marriage." § 1186a(c)(3)(D).⁴

If the INS does not terminate the alien's conditional resident status under § 1186a(b)(1), then ninety days before the end of the two-year period of conditional status, the alien may attempt to remove the conditional aspect of the permanent resident status by following the procedure outlined in § 1186a(c). First, the alien and spouse must jointly file a petition requesting removal of the condition. § 1186a(c)(1)(A). Next, the alien and spouse must appear for a personal interview before the INS. § 1186a(c)(1)(B). Following the interview, if the INS determines that the alien's marriage to the citizen was entered into in good faith, the INS will remove the condition on the alien's resident status. § 1186a(c)(3)(A)—(B). If the INS makes an unfavorable determination, it will terminate the alien's resident status as of the date of the determination. § 1186a(c)(3)(C). The alien may appeal this determination to the BIA, in which case the burden of proof is on the INS "to establish, by a preponderance of the evidence, that the facts and information contained in the petition are not true with respect to the qualifying marriage." § 1186a(c)(3)(D).

There are exceptions to this general procedure. Relevant here, if the alien fails to meet the requirements for timely filing a joint petition, or for jointly appearing for a personal interview, the alien may seek a waiver of these requirements. Upon request, at "the Attorney General's discretion," the INS can waive this requirement, and remove the conditional basis of the permanent resident status, if the alien demonstrates that the marriage to the U.S. citizen "was entered into in good faith by the alien spouse, but . . . 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 submitting a joint petition and appearing for a personal interview. § 1186a(c)(4)(B).⁵ The INS also can remove the conditional basis of the alien's permanent resident status if "extreme hardship would result if such alien is removed." § 1186a(c)(4)(A). Hardship is judged by considering "circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." § 1186a(c)(4). Generally, in considering these waiver requests, "the determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General." § 1186a(c)(4).

If the alien does not file the joint petition within the ninety-day period set forth in the statute, then the alien's conditional permanent resident status automatically terminates on the second anniversary of the date the alien received that status. § 1186a(c)(2)(A); 8 C.F.R. § 1216.4(a)(6). In a subsequent removal proceeding, "the burden of proof shall be on the alien to establish compliance" with the joint petition and interview requirements. § 1186a(c)(2)(B).

II

Hammad attempted to obtain his permanent resident status by means of the procedures described above. In 1993, Hammad was admitted to the United States as a nonimmigrant student. He married Veronica Fierro, a United States citizen, in 1994. Fierro submitted a petition to allow Hammad to adjust his status and, on July 3, 1995, Hammad was granted permanent resident status on a conditional basis for two years.

On May 21, 1997, a little over a month before Hammad's two-year status was due to lapse, the couple filed a joint petition to remove the condition on Hammad's resident status. The couple appeared for a personal interview on August 7, 1997, and initially maintained that their marriage was bona fide. INS officials then interviewed Hammad and Fierro separately and discovered inconsistencies between their descriptions of daily life together. After an INS official confronted Fierro with the serious consequences of immigration fraud, Fierro admitted that the marriage had been entered into solely for immigration purposes and withdrew her support of the petition. She also signed an affidavit, dated August 7, 1997, stating that Hammad paid her $2,000 for helping him become a permanent resident and that she had never lived with him or had sexual relations with him. In light of this information, the INS served Hammad with a Notice to Appear (NTA) and a removal hearing was scheduled.

On June 26, 1998, before his removal hearing commenced, Hammad filed a petition under § 1186a(c)(4)(C), asking the INS to waive the joint petition requirement based on having been battered or the subject of extreme cruelty perpetrated by his spouse during the good faith marriage. To support his petition, Hammad submitted an undated written statement, purportedly signed by Fierro, which was not notarized.⁶ In that undated statement, Fierro retracted her prior 1997 sworn statement that her marriage to Hammad was fraudulent and explained that she had lived with Hammad as his wife, and had withdrawn support of the joint petition because she had felt under duress by the INS. The undated statement further explained that Fierro had withdrawn support of the petition because she was angry with Hammad over rumors that Hammad was planning to remarry. She believed that Hammad was upset with her for having another man's child on October 27, 1995. When Hammad promised to take care of her and her baby, and expressed a desire for the "family to be one unit," Fierro decided to come forward with the truth and reassert her wish that the INS permit Hammad to become a permanent resident.

In addition to submitting the undated statement, Hammad was interviewed again by the INS. At the interview, Hammad explained that contrary to the statement made in his petition, he had not been subject to any mental or physical cruelty during marriage, and that he instead sought a waiver based on having entered into a good faith marriage that ended in divorce. See § 1186a(c)(4)(B). Hammad's marriage had not actually ended in divorce at the time of the interview; although Hammad had filed for divorce, the divorce was not yet final.

On October 9, 1998, the INS denied Hammad's petition for a waiver and terminated Hammad's conditional resident status. In its termination letter, the INS noted that the undated statement from Fierro was internally inconsistent, inconsistent with Hammad's testimony, and lacked specificity. Among other things, the INS pointed out that the undated statement supposedly prepared by Fierro asserted that Hammad and Fierro had a bona fide marriage and lived together as husband and wife, but also stated that Fierro had a child by another man less than one year into the marital relationship. In addition, the INS noted that Fierro's undated statement said that Hammad had promised to take care of Fierro and her baby, while Hammad testified in his interview with the INS that he had decided not to get back together with Fierro. The INS concluded that there was evidence that Hammad had engaged in marriage fraud, in violation of § 1154(c).⁷ Because there was reason to doubt that Hammad had entered into his marriage with Fierro in good faith, and because Hammad had failed to present objective evidence to overcome inconsistencies in the record indicating that the marriage was fraudulent, the INS denied Hammad's petition.

At his removal hearing in 2006,⁸ Hammad requested relief from removal on the...