739 F.3d 329 (7th Cir. 2014), 12-1050, Darif v. Holder

Docket Nº:12-1050.
Citation:739 F.3d 329
Opinion Judge:SYKES, Circuit Judge.
Party Name:Anouar DARIF, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Attorney:Mark S. Kocol, Attorney, Chicago, IL, for Petitioner. Lyle D. Jentzer, Lisa Morinelli, Oil, Department of Justice, Washington, DC, for Respondent.
Judge Panel:Before POSNER, ROVNER, and SYKES, Circuit Judges.
Case Date:January 02, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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739 F.3d 329 (7th Cir. 2014)

Anouar DARIF, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12-1050.

United States Court of Appeals, Seventh Circuit.

January 2, 2014

Argued Sept. 28, 2012.

Page 330

Mark S. Kocol, Attorney, Chicago, IL, for Petitioner.

Lyle D. Jentzer, Lisa Morinelli, Oil, Department of Justice, Washington, DC, for Respondent.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Anouar Darif, a native and citizen of Morocco, married Dianna Kirklin, a citizen of the United States, and by virtue of the marriage was admitted into the United States as a conditional permanent resident in 2001. But the marriage was a sham. Darif was convicted of marriage fraud and related charges, and the Department of Homeland Security (" DHS" ) initiated proceedings to remove him. An immigration judge (" IJ" ) found Darif removable and rejected all of his arguments for relief. The Board of Immigration Appeals (" BIA" or " Board" ) initially ordered further proceedings,

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but when the case returned to the BIA after remand, the Board likewise rejected all of Darif's claims for relief from removal.

In his petition for review, Darif presses only his argument for an extreme-hardship waiver pursuant to 8 U.S.C. § 1186a(c)(4). He claims that the IJ was biased and otherwise denied him a full and fair hearing in violation of his right to due process. But regardless of the alleged flaws in the proceedings before the IJ, the BIA independently reviewed Darif's request for a hardship waiver and exercised its discretion to deny it; we have no jurisdiction to review that discretionary determination. See 8 U.S.C. § 1252(a)(2)(B)(ii). Although we may review constitutional claims and questions of law, see id., Darif's due-process argument cannot succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim is recast as a challenge to the legal sufficiency of Darif's hearing under the governing statutes and regulations, Darif was not prejudiced because the BIA gave his hardship claim plenary and independent consideration and denied it in an exercise of its discretion. Accordingly, we deny the petition for review.

I. Background

Darif and Kirklin married in December 2000 in Morocco. Later that month Kirklin submitted an I-130 Petition for Alien Relative, the petition that must be filed to enable an alien spouse to obtain lawful permanent residence status. The approval of Kirklin's petition allowed Darif to obtain the necessary visa to enter the United States, which he did in December 2001.

Because alien spouses married to United States citizens are admitted for permanent residence on a conditional basis, see 8 U.S.C. § 1186a(a)(1), Darif's status in the United States was as a conditional permanent resident. To remove that conditional status, Darif and Kirklin had to comply with a number of requirements prescribed by statute, including jointly filing an I-751 Petition to Remove Conditions on Residence and undergoing a personal interview. See id. § 1186a(c)-(d); Hammad v. Holder, 603 F.3d 536, 538 (9th Cir.2010). Darif and Kirklin initiated the process for removing his conditional status by filing the necessary I-751 petition in September 2003.

At some point evidence emerged that Darif had paid Kirklin $3,000 for the marriage, exposing it as a sham. In 2004 Darif was charged with marriage fraud in violation of 8 U.S.C. § 1325(c), conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C. § 1512(b)(1). A jury convicted Darif on all three counts the following year, and we affirmed his convictions on appeal. See United States v. Darif, 446 F.3d 701 (7th Cir.2006).

An alien spouse's visa may be revoked if it was obtained through marriage fraud, see 8 U.S.C. § 1155; El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir.2004), and marriage fraud is a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G). So in December 2005 the DHS terminated Darif's conditional permanent resident status, see id. § 1186a(b)(1), and initiated removal proceedings the next month. The grounds for removal were threefold: (1) Darif's conditional residency status had been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had committed marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was inadmissible at the time of entry, see id. § 1227(a)(1)(A). Notwithstanding his convictions, Darif continued to deny that his marriage was fraudulent.

Darif and Kirklin filed a number of petitions in an effort to stave off Darif's removal.

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In January 2006 Kirklin filed a second I-130 Petition for Alien Relative seeking to establish that the marriage was really a good-faith marriage despite the jury's verdict. In February 2006 Darif and Kirklin jointly filed another I-751 petition based on their continued marriage; they also asserted that Darif's removal would cause extreme hardship. Finally, Darif filed his own I-751 petition relying solely on extreme hardship.

Only the request for an extreme-hardship waiver is at issue here, so we pause for a moment to sketch how this form of relief works. As we have noted, to remove the conditional status of permanent residence, an alien and his citizen spouse must jointly file a timely I-751 petition and submit to a personal interview. See id. § 1186a(c)(1). The petition must state, among other things, that the alien spouse and citizen spouse are married and that they did not marry for the purpose of gaining the alien spouse's admission as an immigrant. Id. § 1186a(d)(1). The extreme-hardship waiver comes into play when the alien spouse cannot comply with the petition and interview requirements. See id. § 1186a(c)(4)(A). In that situation " [t]he Secretary of Homeland Security, in the Secretary's discretion, may remove the conditional basis of the permanent resident status ... if the alien demonstrates that ... extreme hardship would result if such alien is removed." Id. A favorable determination of extreme hardship would have counteracted at least one basis for Darif's removal— that his conditional permanent residence status had been terminated. See id. § 1227(a)(1)(D)(ii).

Darif's removal hearing was held on May 4, 2006, the day after we issued our opinion affirming Darif's convictions. Darif and Kirklin appeared without an attorney. Apparently no one was aware of our decision the day before because the IJ continued the hearing to wait for the results of Darif's criminal appeal. Darif maintains, however, that the judge made a number of off-the-record comments at this hearing suggesting that he was biased. Because the record reflects none of these comments, we take Darif's version of events from his affidavit and accept it for the sake of argument. Darif states that at the beginning of the hearing, the IJ told Kirklin that she could let go of Darif's arm because he was " not going anywhere ... yet. " During the hearing itself, the judge referred to Darif's convictions and said, " [Y]ou had better hope you win that appeal because if you don't, you're done, it's over, you are out of here; there are no more continuances, no more chances." The judge later referred again to Darif's criminal case and told him that if he lost in the Seventh Circuit, he would lose in immigration court. Finally, when Darif asked the judge whether he should notify the court when his appeal was decided, the judge responded, " [O]h yeah, you can bring it in, we can get this over with real quick, the sooner the better."

The IJ reconvened the hearing on June 1, 2006, having learned by then of our decision affirming Darif's convictions. This time Darif appeared with counsel, so the judge continued the hearing to June 30 for purposes of " pleading and any and all forms of ... relief." The judge explained to Darif that on that date his counsel would tell the court " whether he wants to apply for a benefit or a defense." Whether these statements meant that Darif needed to be prepared to present his evidence on all his claims for relief on June 30 would later become the subject of dispute.

At the June 30 hearing, the IJ determined that Darif was removable on all three grounds advanced by the government, essentially relying on Darif's convictions for marriage fraud. Darif's attorney

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then advised the judge that Darif was pursuing the following forms of relief: a continuance to allow adjudication of the recently filed I-130 and I-751 petitions; an extreme-hardship waiver under § 1186a(c)(4); a fraud waiver under 8 U.S.C. § 1227(a)(1)(H); withholding of removal under the Immigration and Nationality Act (" INA" ); and protection under the Convention Against Torture (" CAT" ).

The IJ first addressed Darif's request for a continuance and denied it for lack of good cause. The judge noted that Darif had not informed the immigration authorities that his convictions had been affirmed and also that Darif's convictions precluded him from establishing a good-faith marriage, which would doom the I-130 and I-751 petitions in any event. For good measure the judge added that even if the convictions did not have preclusive effect, he would deny the continuance in an exercise of his discretion.

The judge then addressed the request for an extreme-hardship waiver, expressing doubt that Darif was statutorily eligible because his conviction for marriage fraud meant that he never should have been conditionally admitted in the first place. Darif's attorney took the position that the statute allowed for an extreme-hardship waiver despite the conviction. The judge was clearly skeptical and demanded legal authority in support of this position. Darif's attorney responded that he was simply relying on his reading of the statute. The judge rejected the argument and held that Darif was statutorily...

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