Gitau v. Sessions

• Decision Date: 22 December 2017
• Docket Number: No. 17-1280,17-1280
• Citation: 878 F.3d 429
• Parties: Elizabeth Wairimu GITAU, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

878 F.3d 429

Elizabeth Wairimu GITAU, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

No. 17-1280

United States Court of Appeals, First Circuit.

December 22, 2017

Saher J. Macarius and Law Offices of Saher J. Macarius, LLC, Framingham, MA, on brief for petitioner.

Sunah Lee, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before Torruella, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

Elizabeth Wairimu Gitau petitions for review of a decision from the Board of Immigration Appeals ("BIA") dismissing her appeal of an Immigration Judge's ("IJ") decision ordering her removal to Kenya. Having reviewed the BIA's decision, including the decision of the IJ as adopted by the BIA, see Guerrero v. Holder, 667 F.3d 74, 76 (1st Cir. 2012), as well as the record and the parties' briefs, we deny Gitau's petition.

I.

Gitau is a native and citizen of Kenya. Following a marriage to a United States citizen, Undray Johnson, Gitau became a lawful permanent resident on a conditional basis. Under 8 U.S.C. §§ 1186a(c)(1)(A) and (B), she and Johnson could remove the conditional nature of her status by jointly filing Form I-751, the Application to Remove the Conditions of Residence. They divorced, however, and Gitau was unable to satisfy the joint filing requirement. She filed a petition to waive the joint filing requirement, pursuant to 8 U.S.C. § 1186a(c)(4) and 8 C.F.R. § 1216.5, which permit an alien who cannot satisfy the joint filing requirement to nonetheless avoid removal if certain conditions are met. That petition was denied. She was subsequently placed in removal proceedings, whereupon she renewed her request for a waiver. In her waiver requests, she relied upon three subsections of the regulation addressing such waivers, two of which required a showing that she entered into the marriage in good faith, 8 C.F.R. §§ 1216.5(a)(1)(ii)–(iii), and the third of which required a showing that her removal would result in extreme hardship, 8 C.F.R. § 1216.5(a)(1)(i).

After a testimonial hearing, the IJ ruled against Gitau, finding her not to be a credible witness and finding the evidence other than her own testimony to be insufficient to support her claim that she entered into her marriage in good faith. The IJ also found that Gitau had not demonstrated extreme hardship. Rejecting Gitau's appeal, the BIA adopted and affirmed the IJ's decision, determining that the IJ did not clearly err in finding Gitau's testimony not credible, and that the IJ adequately considered her documentary evidence. Gitau now asks us to set aside the BIA's decision for lack of substantial evidence supporting its findings.¹

II.

A.

To establish that she entered into her marriage in good faith, Gitau must demonstrate that she "intended to establish a life with [her] spouse at the time of marriage." Valdez v. Lynch, 813 F.3d 407, 410 (1st Cir. 2016) (internal quotation marks omitted) (quoting Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir. 2005) ). In making this determination, the Secretary of Homeland Security is to "consider any credible evidence relevant to the application." 8 U.S.C. § 1186a(c)(4). Congress assigned to the immigration authorities, not to this Court, the responsibility for determining the credibility of an applicant's testimony. See id. ("The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary of Homeland Security."). As a result of this statutorily compelled deference, we review credibility determinations under the substantial evidence standard, which "requires us to uphold the agency's findings so long as the record does not ‘compel a reasonable factfinder to reach a contrary determination.’ " Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008) ). This deference is great, but "not unlimited." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012).

In reviewing a credibility determination, we recognize that the law governing removal proceedings expressly authorizes the IJ to consider "demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the ... account, the consistency [of the evidence] ... and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim." 8 U.S.C. § 1229a(c)(4)(C). So, too, the IJ must consider any corroborating evidence offered, id. § 1229a(c)(4)(B), and assess the evidence as a whole. Jabri, 675 F.3d at 24.

It is undisputed that a wedding took place in October 2004. The issue, though, is whether Gitau entered into the marriage in good faith. Examination of Gitau at the hearing trained on determining how Gitau remembered her courtship and wedding, how well she knew Johnson and his friends, and what living arrangements ensued. The IJ found that Gitau's testimony contained numerous statements inconsistent with ones she had made previously, and as such, she had "failed to testify credibly regarding her marriage." In so finding, the IJ pointed to four ways in which Gitau's testimony conflicted with other evidence, most significantly her own prior statements made to the United States Customs and Immigration Service ("USCIS") and statements contained within various sworn declarations. These inconsistencies involved: the length of Gitau and Johnson's courtship, the identity of the attendees at their wedding, the identity of the persons residing with them, and the timeframe of her separation from Johnson. The IJ considered the inconsistencies along with Gitau's explanations for them, and ultimately determined that the inconsistencies rendered her testimony not credible. The IJ also found that her other evidence insufficiently corroborated, and actually contradicted, her testimony.

We have reviewed the transcript of Gitau's testimony and the portions of the record said to be inconsistent with that testimony. As to the length of her courtship, though her testimony was arguably inconsistent, this inconsistency may be explained by differing understandings of engagement and dating, or simply by non-malicious inaccuracy, fading memory, or imprecise questioning. Though the IJ mentioned this inconsistency, he did not discuss it in depth, and appeared to place little weight on it. He placed more weight on Gitau's troubles with accurately identifying the guests at her wedding. In her testimony, Gitau identified these guests as her sister, Donald Dennard (her sister's boyfriend), and Peter Hicks. Gitau's 2010 statement to USCIS, however, claimed that the wedding attendees were her sister and a "Peter Smith." She also told USCIS in 2010 that she did not recognize the names Peter Hicks and Donald Dennard. Since there is other evidence that someone by the name of Peter Hicks was Johnson's friend, it is possible that Gitau's memory simply faded as time passed since the 2004 wedding. On the whole, though, this was not the type of testimony that got Gitau off on a good foot.

As for who lived with her and when, Gitau's statements were also inconsistent, but only if one excluded the possibility that her mother's brief stays with her were not "living with her." Less easy to explain—for Gitau—are her inconsistent statements about a very important point: when she and Johnson separated. She told the IJ, repeatedly, that Johnson moved out in January 2007. Previously, though, she had stated in a declaration to USCIS that Johnson had left in June 2008, and had testified before USCIS that he had left in November 2008. On appeal, Gitau suggests that Johnson had various types and degrees of departure between 2007 and late 2008. The IJ—who actually observed Gitau's testimony—was not inclined to view it so charitably. He also considered and rejected Gitau's claim that her failure to testify consistently could be attributed to anxiety.

Though the remainder of Gitau's testimonial evidence largely supported her claim, none of it did so decisively, as it consisted primarily of testimony from her sister and uncle, as well as witness statements in affidavits. Moreover, the IJ also found inconsistencies in the testimony of Gitau's sister, thus reducing even further the persuasive value of this testimony. And the documentary evidence Gitau provided, consisting of bills, financial records, and the like, was similarly inconclusive. It does appear that Gitau and Johnson filed a joint federal tax return for 2006 reflecting the address at which Gitau says they then resided together, but Johnson's W-2 forms for that same year show a different address. Gitau also offered copies of statements and bills addressed to the couple, all but one of which post-date the January 2007 claimed date of separation. And certainly it did not help Gitau's cause that the evidence also showed that in 2007 Johnson purported to marry two other individuals seeking residence status in the United States.

On this record, a reasonable factfinder could have gone either way on the question of whether Gitau was credible, and consequently, on the question of whether she carried her burden of proving that she married Johnson in good faith. There being no plausible claim of legal error, we therefore lack any ability to substitute our assessment of the evidence for that of the IJ. Accordingly, we conclude that there was no error in denying Gitau a waiver based on a good faith marriage pursuant to 8 U.S.C. §§ 1186a(c)(4)(B) or (C).

B.

As an alternative ground for a waiver, Gitau argued to the IJ and BIA, and contends here, that she would suffer extreme hardship were she to be removed, and thus should have been granted a waiver under 8 U.S.C. § 1186a(c)(4)(A). The government counters...