604 F.3d 915 (6th Cir. 2010), 09-3243, Hassan v. Holder

Docket Nº:09-3243.
Citation:604 F.3d 915
Opinion Judge:CORNELIA G. KENNEDY, Circuit Judge.
Party Name:Nabil Taiseer HASSAN and Sawsan Hassan, Petitioners, v. Eric H. HOLDER, Jr., Respondent.
Attorney:Eman H. Jajonie-Daman, Jajonie Damon, P.C., Southfield, Michigan, for Petitioners. Kiley L. Kane, United States Department of Justice, Washington, D.C., for Respondent.
Judge Panel:Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge. [*]
Case Date:May 11, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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604 F.3d 915 (6th Cir. 2010)

Nabil Taiseer HASSAN and Sawsan Hassan, Petitioners,

v.

Eric H. HOLDER, Jr., Respondent.

No. 09-3243.

United States Court of Appeals, Sixth Circuit.

May 11, 2010

Submitted: April 23, 2010.

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[Copyrighted Material Omitted]

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ON BRIEF:

Eman H. Jajonie-Daman, Jajonie Damon, P.C., Southfield, Michigan, for Petitioners.

Kiley L. Kane, United States Department of Justice, Washington, D.C., for Respondent.

Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge. [*]

OPINION

CORNELIA G. KENNEDY, Circuit Judge.

Petitioners Nabil and Sawsan Hassan appeal a Board of Immigration Appeals (" Board" or " BIA" ) order affirming an immigration judge's finding that Petitioners were removable under 8 U.S.C. §§ 1227(a)(1)(A) and 1227(a)(3)(D). Petitioners also appeal the Board's denial of their motion to remand the record so that they could apply for a waiver of admissibility. Finally, Petitioners appeal the Board's ruling that the immigration judge's failure to recuse herself did not amount to a due process violation. For the reasons set forth below, we AFFIRM in part and REVERSE in part the judgment of the Board of Immigration Appeals.

FACTUAL/PROCEDURAL BACKGROUND

Petitioner Nabil Hassan is a 48-year-old Muslim man who was born and raised in Jerusalem, Israel and identifies himself as a Palestinian. Petitioner Sawsan Hassan (née Wadi) is a 40-year-old Muslim woman who was also born and raised in Jerusalem and identifies herself as Palestinian. It is undisputed that Nabil and Sawsan are presently married and have four children, all of whom were born in the United States. What is primarily at issue in this

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case is when the Hassans' marriage took place.

Nabil Hassan was admitted to the United States on March 25, 1995 at New York City on an F-24 Immigrant Visa, which is reserved for unmarried children of lawful permanent residents (" LPRs" ). Hassan qualified for this visa because his mother was living in the United States and had LPR status. Sawsan Hassan entered the United States on the same day as Nabil and was admitted to the country on a Nonimmigrant Tourist Visa. On April 10, 1995, Nabil and Sawsan had a small wedding ceremony at a mosque in Michigan and signed documents to certify their marriage. On May 4, 1995, Nabil filed an I-130 petition on behalf of Sawsan, requesting that her immigration status be adjusted to LPR on the basis of their marriage. On August 11, 1995, the government granted that request.

On December 29, 1999, Nabil filed an application for naturalization. Daniel Wells, then a district adjudications officer for the Immigration and Naturalization Service,1 was assigned to investigate and adjudicate Nabil's application. On July 27, 2000, Officer Wells conducted an in-person interview of Nabil Hassan as part of his investigation. Based on Nabil's answers to certain questions during the interview, Officer Wells became suspicious that Nabil and Sawsan had in fact married sometime before their 1995 entry in the United States. Based on the interview and the results of an investigation of the Hassans' marital status in Jerusalem prior to their entry into the United States, Nabil's naturalization application was denied.

On May 23, 2002, the government served Nabil Hassan with a Notice to Appear (" NTA" ), alleging that: 1) he had married Sawsan before entering the United States; 2) the marriage automatically revoked his visa under 8 C.F.R. § 205.1(a)(3)(i)(I); and 3) he was removable under 8 U.S.C. § 1227(a)(1)(A) because he was actually an inadmissible alien at the time of his entry into the country. Because Sawsan's immigration status was based on Nabil's status, the government also issued an NTA to Sawsan alleging that she too was removable for lacking a valid immigration visa. The government later added two other charges of deportability to Nabil's NTA, including that he was removable under 8 U.S.C. § 1227(a)(3)(D) as an alien who falsely represented himself as a U.S. citizen for any purpose or benefit under the Immigration and Nationality Act (" INA" ) or any other federal or state law. This additional charge was based on an allegation that on March 27, 2001 and May 16, 2001, Nabil falsely represented himself as a U.S. citizen on a Small Business Administration loan application form. Petitioners denied the pertinent allegations, including the claim that they had married prior to their entry in the United States.

I. Merits Hearing and Testimony

At a November 29, 2005 merits hearing, Immigration Judge Marsha K. Nettles heard the testimony of seven witnesses: 1) Officer Daniel Wells; 2) Imam Mohammed Mardini; 3) Ismail, Ayoub, and Ibraham Hassan-Nabil's three brothers; and 4) Petitioners Nabil and Sawsan Hassan. The testimony of these witnesses is summarized below.

A. Testimony of Officer Daniel Wells

Daniel Wells testified that he was the immigration officer in charge of investigating and adjudicating Nabil Hassan's application for naturalization. During his initial investigation, he had noted that the Hassans'

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first child must have been conceived prior to their April 10, 1995 wedding in Michigan.2 According to Wells, this was a very uncommon occurrence among applicants from the Middle East. Suspicious that the Hassans had actually been married at an earlier date, Officer Wells questioned Nabil about these suspicions at Nabil's naturalization interview on July 27, 2000. According to Wells, Nabil admitted that he and Sawsan had in fact been married before they entered the United States. Wells then typed up a statement for Nabil to sign that included this admission. Nabil refused to sign the statement, however, asserting that it was untrue. Officer Wells then typed up a second statement that did not include the admission, and which Nabil signed. Officers Wells, however, later made his own notation on this statement that Nabil's " story changed."

Officer Wells testified that he then asked the U.S. Embassy in Israel to conduct an investigation into whether Nabil and Sawsan had been married in Israel. According to Wells, an officer at the Embassy eventually provided the results of its investigation in a letter that it sent to him via facsimile; that letter indicated that the Israeli Ministry of the Interior had an official record of Petitioners' marriage that predated their entry into the United States.3 Based on this confirmation, the age of the Hassans' first child, and Nabil's own statements in the naturalization interview, Officer Wells denied Nabil's application and initiated removal proceedings against him and Sawsan.

B. Testimony of Imam Mohammed Mardini

Mohammed Radwan Mardini, a Detroit-area imam who worked for the Michigan Department of Corrections and the American Muslim Center, testified as an expert witness regarding Muslim marriage customs. Mardini testified that Islamic marriages involve four steps, each of which must be completed before a marriage is considered finalized. The first step is called Al Fatha, and consists of the man and woman's families meeting and reading from the Koran. The second step is called Al Khuba, which is the engagement and includes the man giving the woman a ring. The third step is called Kateb al Ketab, which involves the parties drafting and signing a marriage contract, which would include the dowry terms and any other conditions placed on the marriage. Mardini testified that the father of one of the families is typically given a copy of the contract, and the contract is also filed with the Sharia court and the civil records department. The fourth and final step is the marriage celebration and the consummation of the marriage. This is the most important step in the marriage process and must be completed before the couple is considered married.4

C. Testimony of Nabil's Three Brothers

Nabil Hassan's brothers-Ismail, Ayoub, and Ibraham-all testified at the merits hearing regarding Nabil and Sawsan's wedding ceremony in Michigan on April 10, 1995 (which occurred some ten years before the merits hearing) and regarding Nabil and Sawsan's living arrangements in

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Michigan prior to their wedding. Although there were some inconsistencies among their statements at the hearing, the three brothers generally testified that Nabil and Sawsan had a small wedding ceremony with family members at a nearby mosque and a small celebration after the ceremony at the home of Nabil's oldest brother. Prior to the wedding, Nabil had resided with that brother, and Sawsan lived in a different dwelling with another of Nabil's brothers and his family. Ibraham, Ayoub, and Ismail all lived in Michigan at the time when Nabil and Sawsan first entered the United States; consequently, none of the brothers had personal knowledge as to what steps Nabil and Sawsan had taken in Jerusalem with respect to their marriage process.

D. Testimony of Nabil Hassan

Nabil also testified at the merits hearing. According to Nabil, he and his family had known Sawsan and her family for years. This connection led Nabil and Sawsan to become romantically involved some time in early 1994. At the end of 1994, Nabil's mother had filed a visa application on his behalf that would authorize his entry into the United States. In February 1995, Nabil became engaged to Sawsan. Nabil testified that on February 24, 1995, the families created a written engagement contract, and that a Sharia agent named Nasra helped the families create the document and then file it with the appropriate authorities. Nabil claimed that he and Sawsan did not finalize their marriage in Jerusalem, however. Instead, they waited until April 10, 1995, when they had their ceremony in the mosque and celebration...

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