Aioub, Ali v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3666
A LI A IOUB,
Petitioner-Appellant,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent-Appellee.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97 320 264
____________
A RGUED A UGUST 6, 2008—D ECIDED A UGUST 29, 2008
____________
Before E ASTERBROOK, Chief Judge, and K ANNE and W OOD ,
Circuit Judges.
K ANNE, Circuit Judge. Ali Aioub, a native and citizen of
Bangladesh, was charged with removability for obtaining
permanent residency through marriage fraud, see 8 U.S.C.
§ 1227(a)(1)(G)(ii), and procuring admission to the
United States through fraud, see id. § 227(a)(1)(A). An
immigration judge found Aioub removable on account of
the marriage fraud, denied his application for asylum
2 No. 07-3666
partly because of that fraud, and denied his application
for withholding of removal. The Board of Immigration
Appeals adopted the IJ’s decision, and Aioub now peti-
tions for review. Because there is substantial evidence
supporting the IJ’s decision, we deny Aioub’s petition.
Aioub entered the United States in June 2001 to attend
college as a non-immigrant student. But he quit school in
March 2003 and married Brandi Hillman, a United States
citizen, that same month. In November 2004, the Depart-
ment of Homeland Security served Aioub with a Notice to
Appear, alleging that the marriage was fraudulent and
that he committed fraud to gain entry into the United
States. Aioub had been interviewed by a DHS agent and
admitted that his marriage to Hillman was fraudulent, yet
at the removal hearing he claimed that he had made that
admission because at the time he was a “mental disaster.”
The IJ then continued the hearing so that the govern-
ment could gather further proof that the marriage was
fraudulent.
When the removal hearing resumed, DHS special agent
James Webb testified that he first learned of the case
when he was contacted by Melody Allie in November
2004. Allie was concerned about the legal ramifications
for her son, Frankie DeVille, Jr., when she discovered that
his fiancee—Hillman—already was married to Aioub.
Agent Webb then interviewed Hillman and DeVille, both
of whom confirmed the information provided by Allie.
DeVille said that Aioub had agreed to pay the couple
$15,000 to participate in the scheme, while Hillman stated
that Aioub had given them, not money, but an apartment
No. 07-3666 3
and a vehicle. Based on this information, Agent Webb
arrested Aioub and took a written statement, in which
Aioub admitted that he had entered “into a fraudulent
marriage with Brandi Hillman for the purpose of gaining
permanent resident status in the United States.”
The government then called Hillman, who testified that
she and DeVille moved into Aioub’s apartment with her
daughter in February 2003. A month later she married
Aioub in exchange for the use of his apartment and
vehicle. During their nine months of cohabitation, Hillman
never consummated the marriage with Aioub, slept in a
separate bedroom with DeVille, and became pregnant
with DeVille’s child. When interviewed by Agent Webb,
Hillman had signed a statement revoking the I-130 Imme-
diate Relative Petition she had filed on Aioub’s behalf. In
that statement Hillman explained that she had “entered
into a marriage with Ali Aioub for him to get an immigra-
tion benefit.”
Next, Aioub testified that he decided to file for asylum
in November 2004 when he was detained by DHS. He said
that he feared returning to Bangladesh because he had
converted from Islam to Christianity after talking to his
fellow detainees. After he called his parents to share the
news, Aioub said, his father told the local villagers and
became the target of discriminatory “sanctions.” According
to Aioub, his father could not find tenants for his rental
houses, and most of his crops were destroyed. Aioub
testified that he fears retribution for his conversion if he
returns home, including demands for money, vandalism,
and possibly even assault.
4 No. 07-3666
Finally, Professor Kendall Stiles testified on Aioub’s
behalf about conditions in Bangladesh. He agreed with
the U.S. State Department’s International Religious Free-
dom Report that a Bangladeshi Christian could “abso-
lutely” practice Christianity openly. And, according to
Stiles, although some villages, including Aioub’s, have a
“phobia” toward non-Muslims, the official government
policy is in reality “quite tolerant.” Professor Stiles added,
however, that conversion was a different matter, and that
Aioub might experience a “harsh” reaction if he was to
inform the local community of his conversion. Still, he
conceded that other Bangladeshis would have no way
of knowing that Aioub had converted to Christianity.
After the hearing, the IJ found Aioub removable for
committing marriage fraud. The IJ noted that Hillman and
Aioub had “no intentions of making a life together at the
time they entered into the marriage.” Next, the IJ held that
Aioub’s asylum application was not barred by the one-year
filing deadline because his conversion constituted changed
circumstances. The IJ concluded, though, that Aioub’s
“fraudulent marriage to obtain permanent residence
status warrants a discretionary denial of his request for
asylum.” The IJ then found that Aioub had failed to meet
his burden of proof with respect to withholding of re-
moval. He reasoned that the danger Aioub faced if de-
ported did not rise to “the level necessary to qualify for
withholding of removal.” The BIA adopted and affirmed
the IJ’s decision.
In his petition for review, Aioub first argues that the IJ
erred in finding him removable for committing marriage
No. 07-3666 5
fraud. Where, as here, the BIA’s opinion adopts and adds
“very little” to the IJ’s decision, we review the IJ’s decision
as supplemented by the BIA’s “terse opinion.” Hamdan v.
Mukasey, 528 F.3d 986, 991 (7th Cir. 2008). To uphold the
IJ’s decision, we must determine that substantial evidence
supports the IJ’s factual finding that the marriage was a
sham. Haxhiu v. Mukasey, 519 F.3d 685, 689-90 (7th Cir.
2008); Fang Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir.
2008).
Aioub entered the United States in 2001 on a student
visa. Rather than finish school, he married Hillman just
two years later. Yet, at the time of the marriage, Hillman
was engaged to DeVille. At the removal hearing she
testified that, although she moved into Aioub’s apart-
ment, she never consummated the marriage, slept in a
separate bedroom with DeVille and her daughter, and
married Aioub only to assist him in obtaining immigra-
tion benefits. Further, Agent Webb testified that both
Hillman and DeVille, in separate interviews, admitted that
the arrangement had been made in exchange for money
and access to Aioub’s apartment and vehicle. There is
therefore substantial evidence supporting the IJ’s factual
finding that Aioub’s marriage to Hillman was fraudulent.
Aioub next argues that the IJ erred in denying his asylum
application on the basis of his fraudulent marriage. He
contends that the IJ’s analysis ignored evidence that there
was “more to the relationship than a simple business
arrangement.” The Immigration and Nationality Act gives
the Attorney General the discretion to grant or deny
asylum to an alien who qualifies as a refugee. See 8 U.S.C.
6 No. 07-3666
§ 1101(a)(42)(A), 1158(b)(1); Alsagladi v. Gonzales, 450 F.3d
700, 701 (7th Cir. 2006) (“Status as a victim of persecution
makes an alien eligible for asylum but does not compel an
exercise of discretion in his favor.”). We review a discre-
tionary denial of asylum for abuse of discretion. Alsagladi,
450 F.3d at 701; Fessehaye v. Gonzales, 414 F.3d 746, 751-52
(7th Cir. 2005).
After finding Aioub removable for marriage fraud, the
IJ determined that his actions constituted “a significant
negative factor in his case” and decided not to exercise
discretion in his favor. In doing so, the IJ found that
Aioub’s sham marriage warranted a “discretionary denial
of his request for asylum.” The IJ noted that Aioub had
dropped out of school and faced possible removal shortly
before marrying Hillman. And Aioub himself at first
admitted that his marriage was a sham. Whether or not
Aioub’s arrangement with Hillman constituted more
than a “simple business arrangement” makes no difference.
We have held that immigrants who “take the easy but
dishonest path when a more honorable if more difficult
one is open cannot insist on administrative lenity.”
Alsagladi, 450 F.3d at 702. Accordingly, the IJ did not
abuse its discretion in denying Aioub’s asylum application.
Finally, Aioub argues that the IJ erred in denying his
claim for withholding of removal. To establish his eligibil-
ity for withholding of removal, Aioub had to show a “clear
probability” of persecution on account of his religion. See
8 U.S.C. § 1231(b)(3)(A); Irasoc v. Mukasey, 522 F.3d 727,
729-30 (7th Cir. 2008). Because Aioub did not allege past
persecution, he had to prove that it is more likely than not
No. 07-3666 7
that he will suffer future persecution in Bangladesh. See
Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007). To over-
turn the IJ’s denial of withholding of removal, we must
find that the evidence compels a contrary result. Irasoc, 522
F.3d at 729.
Here, Aioub did not establish a clear probability of future
persecution on account of his conversion to Christianity.
Until his conversion in November 2004, Aioub had in-
tended to return to Bangladesh to live with his family.
Even after his conversion to Christianity while in deten-
tion, Aioub’s parents seemed unconcerned with his
decision, telling him only that they would “respect his
decision.” And his father felt secure enough to tell the local
mosque that his son had converted to Christianity. Al-
though his parents experienced some discrimination,
Aioub’s own expert witness and the U.S. State Depart-
ment’s International Religious Freedom Report both
noted that Bangladesh is a tolerant nation in which Chris-
tianity is “openly” practiced. Finally, Aioub himself
admitted that he could relocate to the largest city in
Bangladesh, find employment, and remain relatively
anonymous. This last argument, like the others, is with-
out merit.
The petition for review is D ENIED.
8-29-08