Al-Saka v. Sessions

• Decision Date: 18 September 2018
• Docket Number: No. 17-3951,17-3951
• Citation: 904 F.3d 427
• Parties: Wissam Ibrahim AL-SAKA, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

904 F.3d 427

Wissam Ibrahim AL-SAKA, Petitioner,

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

No. 17-3951

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 18, 2018

ON BRIEF: Mohamed Elsharnoby, Dearborn, Michigan, for Petitioner. Rebecca Hoffberg-Phillips, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

SUTTON, J., delivered the opinion of the court in which BATCHELDER, J., joined, and WHITE, J., joined in part. WHITE, J. (pg. 434–35), delivered a separate opinion concurring in all but the discussion of the applicability of the Fifth Amendment due process guarantee.

SUTTON, Circuit Judge.

Wissam Ibrahim Al-Saka received permanent residency on the condition that he remain married to Hanadi Hashem, a U.S. citizen, for at least two years. He ran afoul of that condition when Michigan annulled the marriage months after he arrived here. The immigration authorities refused to waive the condition, found that Al-Saka and Hashem did not marry in good faith, and determined that he should be removed. We must deny Al-Saka's petition to stay.

I.

A Lebanese citizen, Al-Saka married Hashem, a U.S. citizen, in Beirut in August 1999. He entered the United States in March 2001 as a conditional permanent resident based on his marriage to Hashem.

The marriage did not last. Just weeks after he entered the United States, the couple signed a religious divorce. In August 2001, the Lebanese government granted a legal divorce. Two months later, Michigan annulled the marriage at Hashem's request after finding that "there had been no marital cohabitation." A.R. 665. All of this extinguished the condition that justified Al-Saka's permanent-residence status: the marriage to Hashem.

Al-Saka remained in this country nonetheless. In January 2003, he married another woman in Lebanon. That February, he took steps to remove the permanent-residence condition. Because he had divorced Hashem, he could not file a joint petition with her, as the law requires. See 8 U.S.C. § 1186a(c) – (d). He instead asked the government to waive the requirement, claiming that deportation would cause hardship and claiming that he married Hashem in good faith. Id. § 1186a(c)(4)(A)–(B).

In November 2016, an immigration judge held a hearing about his request. Al-Saka described his marriage to Hashem in Lebanon. He said that they lived together for three months in a house his father had bought for them. Then Hashem returned to the United States. She later traveled back to Lebanon and stayed another five or six months before returning to the United States in January 2001. According to Al-Saka, he followed her in March 2001 after recovering from a car accident. Al-Saka claimed Hashem met him at the airport but seemed "a little bit cold." A.R. 135. He said he spent the first seven months at her house in Dearborn, Michigan. But the marriage soon fell apart. He admitted that he traveled back and forth to Lebanon over the next several years and spent as much as eight months there during one stint.

Two of Hashem's relatives testified on Al-Saka's behalf. He also submitted written statements from various friends and family, including Hashem's mother and aunt, as well as photos from the wedding and medical reports documenting his ankle injury

from the car accident.

The immigration judge denied the waiver requests and held that the government could remove him. Al-Saka's testimony, she found, lacked credibility. Although he testified that he lived with Hashem in Dearborn during his first seven months in the United States, the I-751 form submitted to U.S. Citizenship and Immigration Services in 2003 said that he spent just three weeks in Michigan before moving to Louisiana for five months. She also noted that the Michigan annulment certificate, unlike his testimony, denied any "marital cohabitation." A.R. 71. She found that Al-Saka and Hashem did not marry in good faith, and refused to waive the joint-petition requirement. She rejected his hardship claim on the ground that his family remained in Lebanon. See 8 U.S.C. § 1227(a)(1)(D)(i). Even if she had discretion to grant a marriage-fraud waiver, she pointed out, Al-Saka did not deserve one. See 8 U.S.C. § 1227(a)(1)(H).

Al-Saka appealed the decision to the Board of Immigration Appeals and added one other claim: that he received ineffective assistance of counsel. The Board affirmed.

II.

We review the Board's decision as the final agency determination, including the parts of the immigration judge's decision the Board adopted. Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). Al-Saka raises three claims: (1) that the Board erred when it held that he did not marry in good faith; (2) that the Board in the alternative should have forgiven the marriage fraud and allowed him to stay anyway; and (3) that the Board as a last alternative should have remanded the case to the immigration judge for a new hearing because he received ineffective assistance of counsel at the first hearing.

Joint Petition Waiver . The government conditioned Al-Saka's permanent residency on his marriage to Hashem, a U.S. citizen. Someone in his position typically would need to file a joint petition with his spouse to request a release from the condition. 8 U.S.C. § 1186a(c)(1). Al-Saka lost that option when he and Hashem divorced. To avoid removal for failure to meet the condition, he asked the government to waive the joint petition requirement and to lift the condition. The Secretary of Homeland Security, acting through the immigration authorities, may waive the requirement and remove the condition if a petitioner demonstrates that his removal would cause "extreme hardship" or that he entered the now-dissolved marriage in good faith. Id. § 1186a(c)(4)(A)–(B). To protect that discretion, Congress has divested us of jurisdiction to review any decision that the Immigration and Nationality Act commits to the discretion of the Attorney General or the Secretary of Homeland Security. Id. § 1252(a)(2)(B)(ii). That means we may not second guess how the Board assessed the weight or credibility of the evidence before coming to a decision. Johns v. Holder , 678 F.3d 404, 405–07 (6th Cir. 2012). We may review only "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D).

That limitation limits Al-Saka's request for relief. He says the Board erred when it found that he did not enter the marriage in good faith and denied the waiver on that ground. But he "aims the bulk of [his] fire not at the legal standards the Board applied but at its assessment of [his] credibility and the way it weighed the evidence." Johns , 678 F.3d at 406. One example: He faults the immigration authorities for discrediting his testimony after finding that part, but not all, of it conflicted with his past statements. Another example: He faults the immigration judge for giving little weight to the photos, affidavits, and testimonial evidence that described the couple’s relationship in Lebanon. But both arguments aim at assessments committed to the Secretary’s discretion and over which we lack jurisdiction. Id .

Perhaps appreciating the problem, Al-Saka pitches many of his claims as substantial-evidence arguments, which we may consider. Id. at 407. Even then, however, we may not second guess the Board's credibility and weight-of-the-evidence assessments. Id. Put another way: After accepting both assessments, we may decide whether substantial evidence supports the decision. Id. at 408.

It does. The record supports the district court's finding that the couple did not marry in good faith. Al-Saka offered no evidence that the couple owned any joint assets or bank accounts. They spent much of their time apart. Although Al-Saka said that they had intended to stay in Lebanon to build a life together, Hashem petitioned to make him a conditional permanent resident within one month of the marriage. The I-751 form suggests that they did not live in the same State for more than a few weeks after Al-Saka arrived. Hashem did not meet him at the airport when he arrived, obtained an Islamic divorce a few weeks later, and obtained a Michigan annulment several months after that. The evidence to which Al-Saka points—wedding photos, affidavits, and his former relatives' testimony—does not compel a contrary finding. Substantial evidence, in short, supports the Board's decision to reject the joint-petition waiver and to find him deportable because he did not enter the marriage in good faith. See 8 U.S.C. §§ 1186a(c)(4)(B), 1227(a)(1)(G)(i).

Al-Saka says that the immigration authorities erred by focusing on the couple's relationship once they arrived in the United States rather than the span of their relationship. See In re Laureano , 19 I. & N. Dec. 1, 2–3 (B.I.A. 1983). That is not accurate. The immigration judge considered "all admitted evidence in its entirety" and came to a decision after a "careful review of the entire record." A.R. 61, 72. She described the evidence regarding Al-Saka's relationship with Hashem in Lebanon in detail; she just did not find it convincing.

Fraud Waiver . Al-Saka asks us, alternatively, to check the Board’s decision to remove him even if he did commit marriage fraud. The Act gives the Attorney General discretion to waive the removal of certain aliens who meet the statutory criteria even if they "were inadmissible at the time of admission" because they committed fraud or misrepresented their status. 8 U.S.C. § 1227(a)(1)(H). We might decide whether the statute permits such a discretionary waiver, but after that our authority would end, as the Attorney General's ultimate decision to grant or deny a waiver "embodies the kind of pure discretion, unguided by legal standards, that Congress has expressly precluded aliens from challenging in a petition for review." Singh v. Gonzales , 451 F.3d 400, 411 (6th Cir. 2006) (quotations omitted); see 8 U.S.C. § 1252(a)(2)(B)(ii).

We need not...