Kourouma v. Atty Gen USA , 200 F. App'x 143 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-3-2006
Kourouma v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2845
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-2845
MOHAMED LAMINE KOUROUMA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
DEPARTMENT OF JUSTICE; SECRETARY, DEPARTMENT
OF HOMELAND SECURITY,
Respondents
On Petition for Review of a Final Order of the
Board of Immigration Appeals
BIA No. : A79-730-811
Argued January 26, 2006
Before: SMITH, BECKER and NYGAARD, Circuit Judges*
(Filed: October 3, 2006 )
*
This case was argued before Judges Smith, Becker and Nygaard on January 26,
2006. Judge Becker died on May 19, 2006, before the filing of the Opinion. The
decision is filed by a quorum of the panel. 28 U.S.C.§ 46(d).
1
Stanley J. Ellenberg
Suite 600
1528 Walnut Street
Philadelphia, PA 19102
William J. Vandenberg [Argued]
Hogan & Vandenberg
11 Bala Avenue
Suite 8
Bala Cynwyd, PA 19004
Counsel for Petitioner
Jonathan Potter [Argued]
Thankful T. Vanderstar
U.S. Department of Justice
Office of Immigration Litigation
PO. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
OPINION
SMITH, Circuit Judge.
Mohamed Kourouma petitions for review of the denial of his motion to reopen his
immigration proceedings. We have jurisdiction over the denial of a motion to reopen as it
is a final order of removal. 8 U.S.C. § 1252(a); Sevoian v. Ashcroft, 290 F.3d 166, 171
(3d Cir. 2002). We will deny the petition.
On June 28, 2002, Yolanda Norris submitted a Petition for Alien Relative, I-130,
seeking an adjustment of status for her husband, Kourouma, and his children, to that of
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permanent residents. She claimed that she married Kourouma on February 14, 2002 and
had been living with him since November 2001. A marriage interview with an officer
from the Bureau of Immigration and Citizenship Enforcement was conducted on March
26, 2003. The record is clear that Kourouma and his purported wife made a number of
false statements during their marriage interview. Indeed, Kourouma wrote and signed a
statement apologizing to the officer for lying during the interview. After Norris was
confronted with the inconsistencies between their statements, she signed a form indicating
that she was voluntarily withdrawing her I-130 petition seeking an adjustment of status
and that she understood “that this action terminates all action on this petition.”
That same day, the District Director issued a letter to Norris advising that during
the interview to determine the bona fides of her marriage to Kourouma there were
“significant discrepancies . . . that led the Bureau to conclude that yours’ was strictly a
marriage of convenience.” The letter recounted the discrepancies and “found that [the]
sole purpose of your marriage was to confer to Mr. Kourouma an immigration benefit.”
The District Director concluded by acknowledging that Norris had withdrawn her I-130
and that the withdrawal terminated any further action on the petition.
Kourouma was taken into custody after Norris withdrew her I-130 petition. A
Notice of Denial was also issued to Kourouma, advising that Norris’s I-130 had been
withdrawn and that his application for an adjustment of status was denied as he had not
demonstrated his eligibility for an immigrant visa.
3
A hearing was conducted on April 25, 2003 before an Immigration Judge (IJ) to
redetermine Kourouma’s bond. The IJ ordered Kourouma removed, but granted him
voluntary departure by June 24, 2003 once he posted a $3,000 bond. That same day,
Norris filed a second I-130 petition with supporting evidence of the bona fides of her
marriage to Kourouma. She acknowledged that she had previously petitioned for an
adjustment of status on her husband’s behalf, but asserted that she had been threatened
with arrest during the marriage interview if she did not withdraw that petition. She
claimed that she was scared and withdrew the petition because she did not know what to
do. Her statements were made under penalty of perjury.
On May 30, Kourouma moved to reopen his removal proceeding. He related the
procedural history relating to the withdrawn I-130, the alleged threats of the officer, his
wife’s limited education, and the filing of the second I-130 petition. He urged the IJ to
grant his motion to reopen so that the second I-130 petition could be processed as his was
a bona fide marriage.
The IJ denied the motion to reopen, explaining that it was deficient for several
reasons. She pointed out that Kourouma no longer had an immediately available visa as
required by the statute. Moreover, she pointed out that the second I-130 was not prima
facie approvable like the first petition.
A timely appeal to the Board of Immigration Appeals was filed. Kourouma argued
that the second I-130 was prima facie approvable because Norris had involuntarily
4
withdrawn the first petition because of the threats. He also claimed that his right to
procedural due process was denied because the initial I-130 had been withdrawn as a
result of the officer’s threats. The BIA affirmed without an opinion. This timely petition
for review followed.
Kourouma’s principal argument is that the IJ abused her discretion when she
denied Kourouma’s motion to reopen. Kourouma argues that he demonstrated prima
facie eligibility for an adjustment of status for an immediate relative by virtue of a good
faith marriage to Norris, and that he made credible claims that the immigration official
deprived him of due process in his marriage interview by coercing his wife to withdraw
her initial I-130 petition.1 In analyzing this argument we must perforce begin with the
standard of review.
Kourouma has the burden to establish a prima facie case for the relief sought. INS
v. Abudu, 485 U.S. 94, 104 (1988). Where the denial of a motion to reopen is based on
failure of the movant to make a prima facie case for relief, we have adopted a bifurcated
approach, under which we examine the ultimate decision to deny a motion to reopen for
abuse of discretion, and determine whether the findings of fact are supported by
1
We have not ignored Kourouma’s assertion that both he and his wife were
threatened by the officer. In Marrero v. INS, 990 F.2d 772, 777 (3d Cir. 1993), we
instructed that a bare assertion of a due process violation is insufficient. Mindful of this
instruction, and finding in the record before us neither an affidavit nor a declaration from
Kourouma alleging that he was also threatened, we consider only Norris’s statement,
made under penalty of perjury, that she was threatened by the officer to withdraw her
petition or face arrest.
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substantial evidence. Sevoian, 290 F.3d at 174. Substantial evidence review is extremely
deferential, and this Court may only disturb factual findings when a reasonable factfinder
would be compelled to do so. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Dia v.
Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc). After determining whether
substantial evidence supports the IJ’s factual findings, we then look to whether the IJ
abused her discretion, Sevoian, 290 F.3d at 174, having in mind that “[m]otions for
reopening of immigration proceedings are disfavored.” INS v. Doherty, 502 U.S. 314, 323
(1992) (citing Abudu, 485 U.S. at 107-08).
We find no error by the IJ in concluding that Kourouma failed to establish that the
second I-130 was prima facie approvable. To be prima facie eligible for adjustment of
status, an alien must have an immediately available visa. See 8 U.S.C. § 1255(a)(3); INS v.
Miranda, 459 U.S. 14, 15 (1982); Coraggioso v. Ashcroft, 355 F.3d 730, 733 (3d Cir.
2004). The filing of an I-130 immediate relative petition results in a visa becoming
immediately available because the alien spouse of a citizen is not subject to the worldwide
and numerical limitations set forth in 8 U.S.C. § 1151(a). Because the first I-130 had been
withdrawn, however, Kourouma no longer had an immediately available visa.
Moreover, as the IJ correctly pointed out, Norris’s second I-130 petition was not
prima facie approvable. Section 204(c) of the Immigration and Nationality Act provides
that no visa petitions “shall be approved if . . . the Attorney General has determined that
the alien has attempted . . . to enter into a marriage for the purpose of evading the
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immigration laws.” 8 U.S.C. § 1154(c). In light of the significant discrepancies between
the statements of Kourouma and Norris during the earlier interview and the finding by the
District Director that the marriage was “strictly a marriage of convenience,” the second I-
130 was not prima facie approvable because of the attempted marriage fraud. See also 8
C.F.R. § 245.2(a)(1)(C)(ii) (providing that a visa petition may not be approved if the alien
has “attempted . . . to enter into a marriage for the purpose of evading the immigration
laws”).
Nor do we find that the threats related by Norris entitled Kourouma to the relief he
sought. Even if the IJ had concluded that Norris had involuntarily withdrawn her initial I-
130 petition, Norris’s petition had been withdrawn and Kourouma has not directed us to
any authority which would grant the IJ the power to reinstate it.
Moreover, we have acknowledged that “aliens facing removal are entitled to due
process. ‘The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.’” Abdulai v. Ashcroft, 239 F.3d 542, 549
(3d Cir. 2001) (citations omitted). Here, Kourouma had an opportunity to fully present his
case during the marriage interview and to supply evidence of the bona fides of his marital
relationship. It is only after Kourouma’s presentation of his case that the officer
confronted him and his wife with the discrepancies in their statements. The discrepancies
were the basis for the District Director’s finding that the marriage was for the “sole
purpose” of conferring an immigration benefit upon Kourouma. Thus, there was
7
substantial evidence to support the District Director’s finding separate and apart from the
fact that Norris withdrew her initial I-130 petition.
Kourouma contends that his right to due process was violated because the IJ did not
address the charge that his wife had been threatened in resolving his motion to reopen. At
oral argument, when asked to particularize what the due process violation was, Kourouma
replied that the IJ had failed to consider his documentation in support of his motion to
reopen. In Abdulai, we recognized that due process requires that a “decisionmaker must
‘actually consider the evidence and argument that a party presents.’” 239 F.3d at 549
(citation omitted). Here, we conclude that there is sufficient indicia that the IJ fulfilled her
obligation to consider the petitioner’s arguments and evidence. The IJ’s order denying the
motion to reopen specifically referred to the motion itself, Norris’s refiled I-130 petition,
and the earlier withdrawal; two of these three documents alleged that the officer threatened
Norris, causing her to withdraw her petition. Although the IJ did not specifically address
the threats in her decision, there was no need to do so, as she explained that reopening was
not an avenue of relief in the absence of a petition that was prima facie approvable.
In Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003), we observed that there cannot
be a “due process violation in the absence of prejudice. . . .” Id. at 381. Inasmuch as the
relief Kourouma sought was unavailable, we find no prejudice. Without prejudice,
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Kourouma’s claim that he was deprived of his right to due process lacks merit.2
We are by no means countenancing use of the coercive tactics Kourouma alleged.
We note, however, that these alleged tactics are subject to review inasmuch as Norris’s
second I-130 petition has yet to be resolved. In her second petition, she appropriately
notes that she filed an earlier petition, but withdrew it at the time of the interview because
of the officer’s threats. See Matter of Laureano, 19 I & N Dec. 1, 3 (BIA 1983)
(instructing that when a visa petition has been withdrawn based on an admission by a party
that the marriage was solely entered into to bestow an immigration benefit, any subsequent
visa petition involving the same parties must include an explanation for the prior
withdrawal and supply the supporting evidence of the bona fides of the marriage). The IJ
must consider this explanation for withdrawing her petition and the evidence of the bona
fides of her marital relationship in acting on the latter petition. See Matter of Isber, 20 I &
N Dec. 676 (BIA 1993) (concluding that a citizen may file a second petition in an attempt
to establish the bona fides of the same marriage for which a previous petition was filed
and withdrawn, and instructing that the explanation of the reason for the prior withdrawal
must be considered in deciding whether to approve or deny the second petition).
In sum, we conclude that the IJ did not err in denying Kourouma’s motion to
2
Moreover, even if we presume that Kourouma’s claim of misconduct is correct
and that Norris’s initial petition could have been reinstated, Kourouma could not
demonstrate that he had been prejudiced. Prior to the misconduct, Kourouma and Norris
had given contradictory statements during the marriage interview and their right to a visa
at that juncture was speculative at best.
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reopen. Moreover, we reject Kourouma’s contention that he was deprived of his right to
due process. We will deny Kourouma’s petition for review.
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