Yitabarek Yohannes v. Eric H. Holder, Jr. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3519
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Yitbarek Yohannes, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals.
Eric H. Holder, Jr., *
Attorney General of the United States, *
*
Respondent. *
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Submitted: September 22, 2009
Filed: November 5, 2009 (Corrected 11/6/09)
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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Yitbarek Yohannes, an Ethiopian native and citizen, petitions for review of a
Board of Immigration Appeals (BIA) decision denying him a waiver of the spousal
joint-filing requirement for removal of the conditions on his permanent resident status.
The government has moved to dismiss the petition, arguing that we lack jurisdiction
to hear an appeal of the BIA’s discretionary denial of relief. We deny both the motion
to dismiss and the petition for review.
I.
Yohannes entered the United States on a student visa in December 1987. As
a result of his April 1989 marriage to Lailah Sharief, a United States citizen,
Yohannes’s status was adjusted to that of a conditional permanent resident. To
remove the conditions on his status, Yohannes and Sharief were required to file a joint
petition within ninety days of the two-year anniversary of the grant of conditional
permanent residency and appear together at a personal interview. 8 U.S.C. §
1186a(c)(3). Yohannes failed to satisfy this requirement. On March 18, 2002, the
Immigration and Naturalization Services terminated Yohannes’s status and
subsequently charged him as removable.
Yohannes filed a petition seeking a waiver of the spousal joint-filing
requirement under 8 U.S.C. § 1186a(c)(4), which provides the Attorney General the
discretion to grant a waiver if an alien demonstrates that removal would cause extreme
hardship or that the qualifying marriage was entered in good faith and the alien is not
at fault in failing to meet the joint-filing requirement. The government denied the
waiver, and Yohannes sought review of the decision during removal proceedings.
At a hearing before an Immigration Judge (IJ), Yohannes testified that he met
Sharief in 1988, shortly after he arrived in the United States to attend college. Sharief
was a divorced single mother with three children. Yohannes testified that their
relationship developed after he hired her to type his school assignments. He testified
that he was hesitant to tell his Christian family that he intended to marry Sharief—a
reluctance due in part to the fact that she was a Muslim and to Yohannes’s knowledge
that his relatives would disapprove of her religious beliefs.
Yohannes testified that the relationship began deteriorating about one year after
their 1989 marriage, a rift he claimed was due to Sharief’s dishonest behavior and
secret drug use. Within the first few years of the marriage, Sharief conceived two
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children with another man, and Yohannes began living with another woman, Jill
Wade, with whom he fathered a child in 1994. Despite Yohannes’s estrangement
from Sharief, they did not divorce until September 2003. Yohannes attributed this
delay to the fact that he still cared for Sharief and wanted to support her. Yohannes
also testified that removal would cause him extreme hardship because he would be
separated from the child that he had fathered with Wade.
Aside from these basic details, however, Yohannes’s testimony was vague and
often inconsistent. Yohannes could not remember the date of his marriage, final
separation, or divorce. He was unable to recall Sharief’s birthday or how she spelled
her first name, and he gave inconsistent answers when queried about the timing of the
children born during the marriage. Yohannes testified that he and Sharief had shared
a checking and savings account, but he could not remember the name of the bank.
Two witnesses testified on Yohannes’s behalf. Mulugheta Teferi, Yohannes’s
cousin, testified that he had a close relationship with Yohannes and that he had
counseled the couple before and after their marriage. Teferi remembered few specific
details about the marriage, and parts of his testimony were inconsistent with
Yohannes’s account. Teferi did not know, for example, that Yohannes originally
came to the United States to attend college. He also did not know that Sharief was a
Muslim, and he testified that the issue of her religion never came up with the family.
Teferi was uncertain about the number of children Sharief had before the marriage and
how many children she gave birth to before separating from Yohannes. He testified
that the relationship permanently ended in 1992, contradicting an earlier affidavit in
which he stated that he continued to counsel the couple until 1994.
Mengesha Yohannes (Mengesha), Yohannes’s brother, provided similarly
vague testimony. Although he asserted that Yohannes had married in good faith, he
could not recall the approximate date of the wedding, whether Sharief had two or three
children before the marriage, what the children’s names were, or what the couple’s
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initial home was like. Mengesha was uncertain about the approximate time when
Sharief and Yohannes began to experience marital difficulties, and he could not say
when their relationship finally ended.
In addition to the foregoing testimony, Yohannes submitted an undated affidavit
from Sharief, in which she claims that she married Yohannes in good faith. The body
of the affidavit consists of a single paragraph stating that the marriage fell apart
because of Sharief’s struggles with bipolar disorder and multiple personality disorder.
The record also contains joint tax returns from 1989 and 1990. The tax returns,
however, list a post office box as a home address, and several of the accompanying
W-2 forms show separate addresses for Yohannes and Sharief. Yohannes did not
submit any account statements, photographs, or other documentary evidence of a
shared life with Sharief. He testified that he left all of his possessions with Sharief
when he moved out of the house and that the photos and documents have since
disappeared.
Concluding that Yohannes had established neither a good faith marriage nor
that his removal would cause extreme hardship, the IJ denied the request for a waiver.
The IJ found that the hearing testimony was of little probative value, observing that
there were “numerous inconsistencies” in Yohannes’s statements and that the other
witnesses did not appear to have a close relationship with Yohannes and Sharief. The
IJ also expressed skepticism about the lack of documentary evidence, given that
Yohannes had eight months to prepare for his hearing. The BIA adopted and
affirmed the IJ’s decision, rejecting Yohannes’s arguments that the inconsistencies in
his testimony were minor and that the IJ failed to separately consider whether he
merited a waiver because his removal would cause extreme hardship.
II.
We turn first to Yohannes’s argument that the BIA erred in concluding that he
failed to demonstrate eligibility for the good faith marriage waiver. Because the BIA
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adopted and affirmed the IJ’s decision with additional comments, we review both
decisions. Ngengwe v. Mukasey, 543 F.3d 1029, 1032 (8th Cir. 2008).
Section 1186a(c)(4) provides that “[t]he determination of what evidence is
credible and the weight to be given that evidence shall be within the sole discretion
of the Attorney General.” In its motion to dismiss, the government argues that we
cannot review the BIA’s denial of the waiver because 8 U.S.C. § 1252(a)(2)(B)(ii)
precludes our jurisdiction over decisions within the Attorney General’s discretion.
Although the ultimate decision whether to grant the waiver is discretionary, we have
jurisdiction to consider the legal standard for a good faith marriage and to determine
whether the credited evidence meets that standard. Ibrahimi v. Holder, 566 F.3d 758,
763 (8th Cir. 2009); see also Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008)
(per curiam). Our review, however, “is limited to this legal determination and does
not extend to the underlying factual determination.” Ibrahimi, 566 F.3d at 764. We
therefore do not “reevaluate the relative strength of the evidence.” Id. at 765.
Yohannes bears the burden to prove he married in good faith, 8 U.S.C. §
1186a(c)(4), and the central issue is “whether the couple intended to establish a life
together at the time they were married.” Ibrahimi, 566 F.3d at 765 (quoting Damon
v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004)). Relevant evidence may include:
(i) Documentation relating to the degree to which the financial assets and
liabilities of the parties were combined; (ii) Documentation concerning
the length of time during which the parties cohabited after the marriage
and after the alien obtained permanent residence; (iii) Birth certificates
of children born to the marriage; and (iv) Other evidence deemed
pertinent by the director.
8 C.F.R. § 216.5(e)(2).
Yohannes concedes that he produced virtually no documentation in support of
his claim of a bona fide marriage. There were no records of joint assets or liabilities,
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no documents establishing that the couple cohabited for any significant length of time,
and no children born to the marriage. Indeed, it is undisputed that during the early
years of their marriage, Yohannes and Sharief spent substantial time apart from one
another and had children with other partners.
Faced with this lack of documentary evidence, Yohannes relies on the hearing
testimony and Sharief’s affidavit. The IJ and BIA concluded, however, that
Yohannes’s testimony was not credible because of his inconsistent statements about
the facts underlying his marriage. We are not free to reevaluate this credibility
determination. See Ignatova v. Gonzales, 430 F.3d 1209, 1213 (8th Cir. 2005)
(observing that we lack jurisdiction to review questions of fact underlying the §
1186a(c)(4) waiver). Even if we were to consider Yohannes’s argument, we would
not agree that the inconsistencies were minor, as they involved basic facts such as the
timing of the relationship and the birth of children.
Moreover, the additional testimony was too general to provide substantial
corroboration. Yohannes’s brother and cousin struggled to relate specific details
about the marriage, and Sharief’s affidavit did not offer the type of information that
would be useful to a fact-finder in evaluating Yohannes’s claim. Yohannes contends
that the lack of documentary evidence, factual inconsistencies, and ambiguity in the
testimony are all attributable to the fourteen-year interim between his separation from
Sharief and the removal proceedings. Although the exact cause of this delay is not
explained in the record, Yohannes bears the burden of proof, and the regulations make
no special provisions for an individual seeking a waiver many years after the events
that gave rise to his petition. See 8 C.F.R. § 216.5(e). Accordingly, the BIA did not
err in concluding that Yohannes was ineligible for a waiver because he failed to
satisfy the legal standard for a good faith marriage.
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III.
Yohannes argues that the IJ erred in requiring him to select a single ground on
which to seek the § 1186a(c)(4) waiver, rather than allowing him to petition
alternatively based on good faith and extreme hardship. This argument is belied by
the record. Although the IJ initially expressed confusion about Yohannes’s ability
to seek a waiver on multiple grounds, she ultimately allowed him to present evidence
to support both good faith and extreme hardship. The IJ’s written opinion addressed
both issues. The IJ’s discussion of extreme hardship was brief, but her reasoning was
sufficiently clear and supported by the evidence.1 See 8 C.F.R. § 216.5(e)(1) (“The
director shall bear in mind that any removal from the United States is likely to result
in a certain degree of hardship, and that only in those cases where the hardship is
extreme should the application for a waiver be granted.”). The BIA did not err,
therefore, in concluding that the IJ considered the issue of extreme hardship.
Finally, Yohannes contends that his due process rights were violated because
the IJ demonstrated bias in favor of the government. This argument is without merit,
as we have held that an alien has no constitutionally protected liberty interest in a
hearing to determine eligibility for discretionary relief. Ibrahimi, 566 F.3d at 766.
Moreover, the transcript yields no support for the contention that the IJ harbored bias
against Yohannes.
The petition for review is denied.
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1
Although Yohannes’s brief emphasizes the hardship he will suffer due to
separation from the child he fathered with Wade, we note that the record does not
include a birth certificate or testimony from Wade or the child. Yohannes also
expressed uncertainty about whether he would be adversely affected by the political
changes in Ethiopia, should he return there.
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