Adeyanju v. Garland

• Decision Date: 24 February 2022
• Docket Number: Nos. 21-1045 & 21-1616,s. 21-1045 & 21-1616
• Citation: 27 F.4th 25
• Parties: Adekunle Oluwabumwi ADEYANJU, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

27 F.4th 25

Adekunle Oluwabumwi ADEYANJU, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

Nos. 21-1045 & 21-1616

United States Court of Appeals, First Circuit.

February 24, 2022

SangYeob Kim, with whom Ronald L. Abramson, Emily Assunta White, Shaheen & Gordon P.A., Gilles Bissonnette, Jennifer Lyon, and American Civil Liberties Union of New Hampshire, were on brief, for petitioner.

Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Thompson, Hawkins,^* and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

When the Board of Immigration Appeals ("BIA") considers an appeal, it is bound, as we are, by certain standards of review. It reviews factual findings of an Immigration Judge ("IJ") only for clear error. But it is free to conduct discretionary-relief determinations based on those factual findings afresh without any deference to the IJ's conclusion. In today's case, the primary question is where the line lies between an IJ's factual finding, reviewed for clear error, and a discretionary judgment call, reviewed by the BIA de novo. We must consider if the BIA properly applied clear-error review to truly factual findings. We also consider whether the BIA erred in refusing to remand this case to the IJ. Agreeing with some, but not all, of the petitioner's contentions, we grant only in part one of the petitions for review.

BACKGROUND

We begin by exploring how the parties got here, taking the facts from the administrative record, including Petitioner Adekunle Oluwabumwi Adeyanju's testimony before the IJ. See Martínez-Pérez v. Sessions, 897 F.3d 33, 37 n.1 (1st Cir. 2018).

Adeyanju is a native and citizen of Nigeria who entered the United States on March 7, 2013, using a B-2 tourist visa.¹ He has resided here ever since, now residing in Maine.

Before his arrival from Nigeria, he submitted at least two applications for a visa, one in 2010, the other in 2011. In each, Adeyanju represented that he had a live-in domestic partner in Nigeria to whom he was engaged. Within a month of his arrival here, though, Adeyanju met, via an online dating site, Miranda Raymond, who seven months later, in the autumn of 2013, would go on to become his first U.S.-citizen wife. About six months after his marriage, Adeyanju was granted conditional resident status based on his marriage to a U.S. citizen. The couple subsequently filed a joint I-751 petition to remove the conditions of his residency.²

Before the I-751 petition was adjudicated, though, the marriage apparently deteriorated and by 2015, Adeyanju was no longer living with Raymond. Instead, he was residing with Rebecca Dyer, whom he said was, at that time, his roommate. During their time together, Rebecca became pregnant with Adeyanju's child, who was born in April 2016.

Also in 2014 and 2015, a number of police reports in Maine were generated for Adeyanju's behavior towards women. In short, on at least six occasions, Adeyanju was reported as engaging in harassing or suspicious behavior towards women as young as seventeen. Women reported that Adeyanju approached them in public places and asked them personal questions, including whether they were in high school. He requested their phone numbers or solicited them to go out with him, persisting even after the women declined. Nevertheless, none of these incidents resulted in any arrests or charges.

In January 2018, the United States Customs and Immigration Service ("USCIS") notified Adeyanju and Raymond that it intended to deny their jointly filed I-751 petition and did so in May 2018.³ In issuing the denial, USCIS reasoned that Adeyanju intended to commit marriage fraud with Raymond. To support its finding, USCIS relied on the separate living arrangements, records of Adeyanju's police encounters involving other women, and evidence suggesting there was not a "bona fide familial relationship," including: the lack of knowledge about each spouse's finances, activities, or personal relationships; the failure to file joint tax returns; their failure to go on shared trips or participate in shared activities; and Adeyanju's relationship and child with Rebecca. Additionally, according to USCIS, Raymond told the officer at an interview that Adeyanju lied to her about why he was marrying her -- not for love, but rather, to gain an immigration benefit. After the notice of intent to deny was issued, Raymond disputed USCIS's assertion that she told a USCIS officer that Adeyanju lied about their marriage and claimed that the officer had twisted her statements. But USCIS was unconvinced and rejected Raymond's explanation in the final denial. The same day the I-751 denial was issued, the Department of Homeland Security ("DHS") initiated removal proceedings against Adeyanju.

Three months later, Adeyanju divorced Raymond. And two months after that, he married Rebecca -- a U.S. citizen and mother of Adeyanju's U.S.-citizen child. Rebecca then filed an application for adjustment of Adeyanju's status on the basis of their marriage and an I-751 waiver petition.⁴

Not long before the new application was filed, Adeyanju was arrested in Maine. A woman reported that Adeyanju drove her home from a local bar because she was too drunk to drive. And she reported that, on the way to her home, Adeyanju pulled the car over and raped her. Initially, when the police approached Adeyanju regarding the allegations, he flat-out denied having sexual intercourse with the victim. Adeyanju told police that he was married and was on medication that prohibited him from having sexual intercourse. Later, though, the victim participated in a sexual-assault evidence collection procedure, which revealed physical evidence of sexual intercourse and which harvested a DNA sample of the assailant. Armed with a search warrant for a sample of Adeyanju's DNA, police were able to match Adeyanju's DNA to the sample collected. As a result, Adeyanju was indicted for kidnapping, as well as two different counts of sexual assault.

LEGAL PRIMER

Given the quirkiness of immigration law, before we explore the proceedings before the BIA and IJ, we will begin with a primer on some relevant legal principles to offer some context. The BIA's regulations set up a procedural hierarchy for immigration proceedings. Within that hierarchy, the IJ and BIA have different, but sometimes overlapping, roles. "The IJ has the front-line duty of finding the facts." Chen v. Holder, 703 F.3d 17, 22 (1st Cir. 2012). On appeal, the BIA's review of the IJ's factual determinations is circumscribed by regulation. BIA regulations at the time of the appeal provided that the BIA is prohibited from "engag[ing] in factfinding in the course of deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv) (2020). The BIA "will not engage in de novo review of findings of fact determined by an immigration judge." Id. § 1003.1(d)(3)(i). Rather, "[f]acts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous." Id.

To find clear error as to the IJ's findings of fact, the BIA must be "left with the definite and firm conviction that a mistake has been committed." Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54878-01, 54889 (Aug. 26, 2002) [hereinafter "BIA Reforms"]. "A factfinding may not be overturned simply because the [BIA] would have weighed the evidence differently or decided the facts differently had it been the factfinder." Id. Or, as we've put it, see id. (noting the regulation's clear-error standard mirrors that employed by the courts of appeals in non-immigration cases), to show clear error a challenger "must show that the contested finding stinks like ‘a 5 week old, unrefrigerated, dead fish,’ " United States v. Baptiste, 8 F.4th 30, 42 (1st Cir. 2021) (quoting United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019) ). To demonstrate clear error, one "must do more than show that the finding is ‘probably wrong,’ for [a court] can reverse on clear-error grounds only if -- after whole-record review -- [it] ha[s] ‘a strong, unyielding belief’ that the judge stumbled." Rivera-Carrasquillo, 933 F.3d at 42 (quoting Toye v. O'Donnell (In re O'Donnell ), 728 F.3d 41, 46 (1st Cir. 2013) ).

When it comes to questions of law, discretion, and judgment, though, the BIA has the authority to review those determinations of the IJ de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

"Adjustment of status," the application at issue here, "is a matter of grace, not of right, and the evaluation of such applications is left to the discretion of the Attorney General." Wallace v. Gonzales, 463 F.3d 135, 137 (2d Cir. 2006) ; see 8 U.S.C. § 1255(a). There are no "restrictive guide lines for the exercise of discretion." Matter of Arai, 13 I. & N. Dec. 494, 495 (BIA 1970). In general strokes, the Attorney General (or her designee in the IJ or BIA) balances the negative equities weighing against, and the positive equities favoring, an exercise of administrative discretion.

See id. at 495–96. In weighing those equities, the BIA may "assign the weight it sees fit" to them. Alimbaev v. Att'y Gen. of the U.S., 872 F.3d 188, 200 n.10 (3d Cir. 2017) ; see BIA Reforms, 67 Fed. Reg. at 54890 ("[T]he weight accorded to individual factors ... may be reviewed by the Board de novo."). The petitioner bears the burden of demonstrating in her removal proceeding that she satisfies the eligibility requirements and merits a favorable exercise of discretion. 8 U.S.C. § 1229a(c)(4)(A) ; 8 C.F.R. § 1240.8(d).⁵ As a discretionary call, the BIA's review of an IJ's decision granting or denying adjustment of...