Ibrahimi v. Holder, 08-1587.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMelloy
Citation566 F.3d 758
PartiesKhalid IBRAHIMI, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
Docket NumberNo. 08-1587.,08-1587.
Decision Date20 May 2009
566 F.3d 758
Khalid IBRAHIMI, Petitioner,
Eric H. HOLDER, Jr.,1 Attorney General of the United States, Respondent.
No. 08-1587.
United States Court of Appeals, Eighth Circuit.
Submitted: December 11, 2008.
Filed: May 20, 2009.

[566 F.3d 759]

Timothy E. Wichmer, argued, St. Louis, MO, for petitioner.

Brooke Maurer, argued, Andrew Oliveira, on the brief, Washington, D.C., for respondent.

Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,2 District Judge.

MELLOY, Circuit Judge.

Khalid Ibrahimi, a Tunisian native and citizen, petitions for review of the decision of the Board of Immigration Appeals ("BIA") to deny him a waiver of the spousal joint-filing requirement for the removal of the conditions on his permanent-resident status. He claims that the BIA improperly allocated the burden of proof and erroneously determined that he did not merit removal of the conditions regardless

566 F.3d 760

of the burden. He further argues that the Immigration Judge ("IJ") acted as a biased arbitrator and erred in admitting certain evidence in violation of his due-process rights. The Government argues that because the ultimate decision to grant the petition to waive the joint-filing requirement is discretionary, we lack jurisdiction to hear this appeal. The Government further contends that because there is no liberty interest in discretionary relief from removal, we have no jurisdiction to consider Ibrahimi's due-process claim. We deny the petition for review.


Permanent-resident status conferred on the basis of a marriage to a U.S. citizen is granted initially on a conditional basis. Id. § 1186a(a)(1). Within ninety days prior to the two-year anniversary of the grant of conditional permanent-resident status, an alien can apply to have the conditional basis removed. Id. § 1186a(c)(3), (d)(2); 8 C.F.R. § 216.4(a)(1). To do so, the alien and U.S.-citizen spouse must file an I-751 Petition to Remove Conditions on Residence and appear at an interview with U.S. Citizenship and Immigration Services ("USCIS"). 8 U.S.C. § 1186a(c)(3); 8 C.F.R. § 216.4(a)(1). If the alien meets these joint-filing requirements, then the agency will remove the conditions on the alien's permanent-resident status. 8 U.S.C. § 1186a(c)(3). In instances where the alien fails to meet the requirements because the qualifying marriage ended prior to the two-year anniversary, however, the alien may seek a discretionary waiver of the joint-filing requirement. Id. § 1186a(c)(4)(B). In order to establish eligibility for this good-faith marriage waiver or "hardship waiver," the alien must first show that he or she entered into a "qualifying marriage ... in good faith." Id. Only after the alien has established this fact does the Attorney General possess the discretion to grant the waiver and remove the conditional basis of the permanent-resident status. Id. If the Government denies the waiver application, the alien is entitled to seek review of the denial before the IJ during the course of removal proceedings. 8 C.F.R. § 216.5(f).

Khalid Ibrahimi entered the United States as a non-immigrant visitor for pleasure in May 2000. Ibrahimi married a U.S. citizen, Nicole Kohring, on January 17, 2002. Four months later, he applied for adjustment of status to that of a legal permanent resident based on his marriage. USCIS granted Ibrahimi conditional permanent residence as Kohring's spouse in May 2003. In April 2004, however, Kohring and Ibrahimi divorced, and within the month, USCIS notified Ibrahimi of its intent to terminate his conditional permanent-resident status because of the divorce. Ibrahimi filed a petition seeking to waive the joint-filing requirement and have the conditions removed. USCIS denied the petition and terminated his conditional permanent-resident status in August 2004. The agency then initiated removal proceedings against him. During those proceedings, the IJ found Ibrahimi removable under 8 U.S.C. § 1227(a)(1)(D)(i) because USCIS had terminated his conditional permanent-resident status after the divorce.

Following the IJ's removability determination, Ibrahimi renewed his petition for a good-faith-marriage waiver under § 1186a(c)(4). The IJ continued the hearing to allow the parties to gather evidence. During that proceeding, the IJ heard lengthy testimony on the nature of Ibrahimi's relationship with Kohring in order to determine whether he had entered into his marriage with her in good faith. Ibrahimi; Kohring; Ibrahimi's former girlfriend, Stacey Urgento; two of Ibrahimi's co-workers; and a USCIS agent were witnesses

566 F.3d 761

during the proceeding adjudicating Ibrahimi's waiver petition. During these proceedings, the IJ explicitly found Urgento's testimony credible but called into question Kohring's credibility by referring to portions of her testimony as "outlandish." The IJ, however, never made an explicit credibility finding as to Ibrahimi's testimony. In the absence of "an explicit adverse credibility finding," we are obligated to accept as true a witness's testimony. Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir.2007) ("An implicit credibility finding made in passing does not suffice."); accord Nguyen v. Mukasey, 522 F.3d 853, 855 n. 2 (8th Cir.2008) (per curiam). Thus, to the extent that Ibrahimi's testimony does not conflict with Urgento's statements, the evidence in the administrative record indicates the following.

Upon his arrival in the United States in 2000, Ibrahimi began dating Urgento, a U.S. citizen. They were in a relationship for more than a year, eventually cohabitating in Washington, D.C. While the two discussed marriage at various points during their relationship, often at Ibrahimi's urging, Urgento ended their relationship in December 2001 following a holiday visit with her family. Urgento admitted that her family did not approve of her relationship with Ibrahimi and noted that fact as part of the reason they separated. During her testimony about her relationship with Ibrahimi, she said that, at various points during their courtship, he had threatened to leave her and marry another women if she refused to marry him.

Three days after Ibrahimi and Urgento's break-up, on December 28, 2001, Ibrahimi met Kohring at a bar. They had consensual sexual relations that evening. Within two days, Kohring and Ibrahimi decided to move in with one another, and they began discussing marriage immediately. Less than one month later, on January 17, 2002, they were married in a civil ceremony at a courthouse. Ibrahimi testified that he married Kohring out of love and that they had fallen in "crazy love ... instantly." Ibrahimi denied marrying Kohring for immigration benefits, citing the fact that at the time of his marriage to Kohring, his D.C. employer had submitted a labor certification for him that would have made him eligible for adjustment of status on those grounds. Ibrahimi testified that he believed that he would be allowed to stay in the country based on his employment.

Immediately after the wedding, Kohring and Ibrahimi lived together with other roommates. Once Kohring's lease ended, in April 2002, Ibrahimi and Kohring co-signed a lease and moved into their own apartment. Kohring became pregnant with their child and moved from Washington, D.C., to St. Louis to be closer to her family in November 2002. Ibrahimi followed two weeks later. In St. Louis, they again lived together as husband and wife, establishing a joint bank account into which they deposited both of their paychecks. Kohring listed Ibrahimi as her health-insurance dependent.

On May 10, 2003, USCIS adjusted Ibrahimi's status to that of a conditional legal-permanent resident. Ibrahimi and Kohring's relationship was rocky, however, and they separated in July 2003, a few months after their son was born and two months following Ibrahimi's adjustment of status. Kohring moved out of their marital residence, and their divorce became final on April 19, 2004. In all, Kohring and Ibrahimi were married approximately two years and two months, and they were separated for almost eleven months during that period.

The IJ relied extensively on Urgento's testimony and found it "incredulous" that the circumstances surrounding Ibrahimi's

566 F.3d 762

marriage to Kohring could support a determination that he had entered into his marriage in good faith. In addition to details about her relationship with Ibrahimi, Urgento had testified that Ibrahimi had called her a week before his wedding to Kohring and had attempted to reconcile their relationship, seeking to marry Urgento instead. Despite the fact that Ibrahimi was involved in a long-term relationship with Urgento immediately prior to meeting Kohring, Kohring was unaware of that relationship until after Ibrahimi and Kohring had separated. Ibrahimi claimed that he had kept the relationship a secret so that Kohring would not become jealous and leave him. Urgento had known about Ibrahimi's marriage to Kohring, however. In fact, Urgento had heard about it from Ibrahimi's family in February 2002 when they erroneously called to congratulate her on her marriage to Ibrahimi. After this phone call, Urgento sent a facsimile to USCIS informing the agency that Ibrahimi was in the country illegally.

The BIA did not explicitly adopt the IJ's decision but affirmed its finding that the marriage was not a good-faith marriage and its denial of a waiver of the joint-filing requirement. As support for its conclusion, the BIA cited to the timing of Ibrahimi's break-up with Urgento and his marriage to Kohring, the fact that Ibrahimi had threatened to leave Urgento if she did not marry him, and the phone call that Ibrahimi made to Urgento just prior to the wedding seeking reconciliation. The BIA noted that the evidence of their joint residences, joint bank accounts, joint health insurance, and family life was "of limited probative value in light of the testimony [from Urgento] regarding the respondent's motivation at the time of...

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