Agyei v. Holder

• Decision Date: 30 August 2013
• Docket Number: No. 12–1517.,12–1517.
• Citation: 729 F.3d 6
• Parties: AKWASI AGYEI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

729 F.3d 6

AKWASI AGYEI, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1517.

United States Court of Appeals,First Circuit.

Aug. 30, 2013.

Joanna M. Golding and Trupti N. Patel & Associates on brief for petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, and Edward E. Wiggers, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before HOWARD, Circuit Judge, SOUTER,^* Associate Justice, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Petitioner Akwasi Agyei seeks review of the agency's decision that he was ineligible for adjustment of status and cancellation of removal, as well as the denial of his motion to reconsider and reopen. The agency's actions were premised on the finding that he had materially misrepresented to immigration officials the circumstances of his marriage, thereby making him statutorily ineligible for the relief he seeks. Agyei challenges this factual finding and the related determinations of ineligibility. He also raises due process and ineffective assistance of counsel claims.

Applying the appropriate standards of review, we must defer to the agency's factual findings. This deference compels us to deny Agyei's petition for review.

I.

A. Agyei's Requested Forms of Relief

Agyei is a Ghanaian national who entered the United States without inspection in 1984. His proceedings have taken a long and winding course, during which he has deployed a variety of stratagems in an effort to avert his removal. Two forms of relief, adjustment of status and cancellation of removal, are at issue in this case.

Agyei seeks adjustment of status under 8 U.S.C. § 1255(i), which permits certain noncitizens to become lawful permanent residents (“LPRs”). This statute provides a pathway to relief for “certain grandfathered aliens” who would otherwise be ineligible to adjust status because they entered without inspection or are otherwise precluded from availing themselves of the more common form of adjustment of status. Matter of Estrada, 26 I. & N. Dec. 180, 183 (BIA 2013); see also id.8 U.S.C. § 1255(a), (c).¹

The statute sets forth various means of adjusting status. The one at issue in this case is the family-based mechanism, which requires as a precursor that an LPR or U.S. citizen family member petition on behalf of the noncitizen seeking to adjust status. Id. § 1255(i)(1)(B)(i). The “grandfathering” provisions of the statute require that the petition have been filed before April 30, 2001. Matter of Estrada, 26 I. & N. Dec. at 183; see also8 U.S.C. § 1255(i)(1)(B)(i). The petition names the noncitizen seeking adjustment as the beneficiary. See id.; see generally Luevano v. Holder, 660 F.3d 1207, 1213–14 (10th Cir.2011). This petition, called an I–130 petition, is sent to U.S. Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security (“DHS”). See, e.g., Lockhart v. Napolitano, 573 F.3d 251, 253–54 (6th Cir.2009). USCIS adjudicates the petition and determines whether it should be approved. As part of that process, USCIS verifies the existence of the family relationship. See Taing v. Napolitano, 567 F.3d 19, 21–22 (1st Cir.2009); see also8 U.S.C. § 1154(b). For these purposes, Agyei has variously been the beneficiary of either his brother, Henry Opoku, or his wife, Esther Raudys, who are both U.S. citizens.

If USCIS approves the petition, the beneficiary “may then seek adjustment of status to that of a LPR by filing an ... application.” See Taing, 567 F.3d at 21.² If the beneficiary is in removal proceedings, the presiding immigration judge (“IJ”) has authority over the adjustment application and decides whether the applicant meets the statute's other requirements and should receive relief. 8 C.F.R. § 1245.2(a)(1).

Agyei's second requested form of relief is cancellation of removal for certain non-LPRs, otherwise known as non-LPR cancellation. See8 U.S.C. § 1229b(b). Although it does not entail a separate petitioning process, this form of relief also relies on a family relationship. To be eligible for non-LPR cancellation, the applicant must establish, inter alia, “that [his or her] removal would result in exceptional and extremely unusual hardship to the alien's [U.S. citizen or LPR] spouse, parent, or child.” Id. § 1229b(b)(1)(D). Agyei has at different points relied on his wife, Raudys, or his U.S. citizen child as his qualifying relatives for the purposes of eligibility for cancellation.

B. Agyei's Initial Proceedings Before the IJ

With that backdrop set, we now recount the facts of Agyei's case, as drawn from the agency's findings and our review of the administrative record. On October 30, 1997, his brother, Opoku, filed an I–130 petition naming Agyei as a beneficiary. The former Immigration and Naturalization Service (“INS”) approved Opoku's petition on May 27, 1998. This petition was not acted upon for a number of years.³

In the meantime, on February 23, 1999, Agyei married Esther Raudys in Massachusetts. Later that year, immigration authorities detained Agyei and initiated removal proceedings, charging him with being present in the United States without being admitted or paroled. See8 U.S.C. § 1182(a)(6)(A)(i). Agyei conceded removability and stated that he would apply for non-LPR cancellation, relying on Raudys as his qualifying relative. This application listed separate addresses for Raudys and himself.

On October 27, 2000, the IJ held a hearing on Agyei's cancellation application, where Agyei first offered testimony regarding his marriage. In response to direct questions regarding his living arrangements, Agyei stated that he married Raudys in February 1999, and that they lived together for six months. Eventually, Agyei and Raudys “started seeing things differently,” and separated in order to “give each other space.” He also testified that he intended to divorce Raudys, but that he had not yet done so in part because Raudys had terminal cancer.

At a subsequent hearing in April 2001, the IJ noted that under BIA precedents, the availability of other means of avoiding removal (such as adjustment of status) could weigh against Agyei in determining whether his wife would suffer “exceptional and extremely unusual hardship” for the purposes of establishing his eligibility for cancellation. See generally In re Monreal–Aguinaga, 23 I. & N. Dec. 56, 64–65 (BIA 2001). The IJ suggested that it would therefore behoove Agyei to look into adjusting status through his wife, rather than pursuing his application for cancellation.

C. Raudys's I–130 Application and the Subsequent Interviews

As suggested, on April 27, 2001, Raudys filed a Form I–130 with USCIS in order to establish her relationship to Agyei. The version of Raudys's I–130 contained in the record is dated May 22, 1999, despite the fact that Agyei first pursued adjustment through his wife in 2001. The petition listed the same address for both her and Agyei.

The IJ continued the removal proceedings so that USCIS could adjudicate Raudys's I–130 petition. The case saw little activity until November 2004. Then, as part of USCIS's investigation, immigration officers conducted separate interviews with Agyei and Raudys.⁴ USCIS's denial of Raudys's I–130, dated January 18, 2006, states that the couple gave inconsistent answers to several questions.⁵ These discrepancies included: the number of years they had known each other, Agyei's favorite sports team, their movie-watching habits, and whether they received paid magazine subscriptions at home. USCIS also identified “many” differences in their respective drawings of their bedroom, and noted that Agyei filed taxes as a single person in 1999 and 2000.

The denial letter stated that Raudys's attorney attempted to rebut these contentions by suggesting that Agyei and Raudys were “living separately from each other” so that Raudys could care for her ailing mother during the daytime, but that they spent their nights together. Based on the inconsistencies in their statements, USCIS stated that the evidence suggested that Agyei and Raudys were not living together, and it concluded that they had entered into a sham marriage for the purpose of obtaining immigration benefits. Accordingly, USCIS denied Raudys's I–130, thereby cutting off Agyei's chance to adjust status through his wife.

D. Agyei's Further Proceedings Before the IJ and the BIA

During a period of some confusion relating to his whereabouts, Agyei was ordered removed in absentia for failure to appear at a hearing. Once the confusion was cleared up, the agency resumed his removal proceedings in 2007. For reasons that remain unclear, neither Agyei nor the IJ had received word at this point of USCIS's January 18, 2006, denial of Raudys's I–130 petition.

At an April 12, 2007 hearing, the government attorney informed the IJ and Agyei for the first time that Raudys's I–130 petition had been denied. In response, Agyei expressed his intent to file another application for cancellation of removal, this time relying on his U.S. citizen daughter as the qualifying relative.⁶

On March 17, 2009, Agyei filed a motion asking to change his requested form of relief yet again. He cited USCIS's previous grant of his brother's petition in 1998, and stated his intent to adjust status via that petition. The IJ granted the motion and the proceedings were continued so that Agyei could submit supporting documentation.

The proceedings reconvened on February 16, 2010, when Raudys's I–130 petition was discussed in detail for the first time. The government argued that USCIS's determination that Agyei and Raudys had entered into a sham marriage defeated his eligibility for adjustment based on Opoku's petition. See Part II.A, infra. The IJ expressed reluctance to bar his application for relief based solely on the denial of Raudys's I–130 petition, and continued the case so that Agyei could submit evidence rebutting or explaining...