Atieh, et al v. Riordan, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [14-1947]

Case: 14-1947

Document: 00116876161

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Date Filed: 08/14/2015

Entry ID: 5930253

United States Court of Appeals
For the First Circuit
No. 14-1947
RANIAH FATHI ATIEH and FUAD FAROUQ ATIEH,
Plaintiffs, Appellants,
v.
DENIS C. RIORDAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.

Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC for appellants.
Benjamin C. Mizer, Acting Assistant Attorney General, Office
of Immigration Litigation, Civil Division, United States
Department of Justice, William C. Peachey, Director, Colin A.
Kisor, Deputy Director, and J. Max Weintraub, Senior Litigation
Counsel, for appellees.

August 14, 2015

Case: 14-1947

Document: 00116876161

SELYA,

Circuit

Page: 2

Judge.

Date Filed: 08/14/2015

To

borrow

a

Entry ID: 5930253

phrase

often

attributed to a homespun philosopher, Lawrence "Yogi" Berra, this
case is déjà vu all over again.

For a second time, Fuad Farouq

Atieh and his wife Raniah appeal from a district court judgment
affirming a decision of the Board of Immigration Appeals (BIA)
denying Raniah's petition to grant Fuad lawful permanent resident
status.
I.

After careful consideration, we affirm.

BACKGROUND
Fuad Atieh, a Jordanian national, entered the United

States on a six-month visa in 1992.
decade

later

proceedings

(on
by

March

the

Services (USCIS).

17,

United

2003),
States

He overstayed, and roughly a
he

was

placed

Citizenship

and

in

removal

Immigration

While those proceedings were pending, Fuad

married his first cousin, Jamileh Khudari (a U.S. citizen), at a
January 2004 ceremony in Lowell, Massachusetts.

His new wife

subsequently filed an I-130 visa petition for an alien relative
(here, Fuad).

See 8 U.S.C. § 1151(a)(1).

The marriage quickly

disintegrated: Fuad and Jamileh divorced on December 12, 2004.
Not surprisingly, Jamileh withdrew her I-130 petition.
In August of 2005, Fuad married Raniah, who was also a
U.S. citizen.

Some two months later, Raniah filed an I-130

petition on Fuad's behalf.

On March 3, 2006, USCIS interviewed

Fuad and Raniah in connection with that petition.

Fuad told the

examining officer that his earlier marriage to Jamileh had been

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arranged by the couple's parents and that he had never been in
love with her.

He admitted, though, that he and his parents had

hoped that he might acquire lawful permanent resident status
through Jamileh.
In May of 2006, USCIS issued a notice of intent to deny
the I-130 petition.

See 8 U.S.C. § 1154(c).

The notice cited the

allegedly fraudulent nature of Fuad's first marriage as the impetus
for USCIS's intended decision and invited the applicants to submit
any additional evidence that they might have in support of their
position.

The Atiehs responded by submitting several affidavits,

including

affidavits

from

parents, and Fuad himself.

Jamileh,

Jamileh's

parents,

Fuad's

In his statement, Fuad acknowledged

that, prior to marrying Jamileh, he had expressed a romantic
interest in Raniah and had contacted her parents to gain their
approval, only to be rebuffed.
On December 6, 2007, USCIS denied the I-130 petition.
It found, based on the record as a whole, that Fuad's marriage to
Jamileh was designed to evade the immigration laws.

This decision

was upheld by the BIA, which concluded that the Atiehs had failed
to prove the bona fides of Fuad's first marriage.
The Atiehs countered by attacking on two fronts.

First,

they sued in the federal district court, seeking to set aside the

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BIA's ukase.1
USCIS.

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Second, they filed yet another I-130 petition with

The district court prudently held the Atiehs' suit in

abeyance pending the agency's adjudication of the new petition.
The Atiehs achieved no better result the second time
around.
to

deny

On March 25, 2010, they received notice of USCIS's intent
their

affidavits

latest

from

petition.

various

family

The

notice

members

explained

showed

no

that

compelling

evidence that the marriage between Fuad and Jamileh was either
bona fide or contracted in good faith.

Moreover, bank statements

submitted by the Atiehs showed little if any evidence of any
comingling of marital funds between Fuad and Jamileh.

Although

the Atiehs objected to this notice, they proffered no additional
evidence

and

USCIS

denied

subsequently affirmed.

relief

on

May

5,

2010.

The

BIA

Undaunted, the Atiehs filed an amended

complaint in their district court suit.
The

district

court

dissolved

its

earlier

stay

of

proceedings and, in October of 2012, granted the defendants' motion
to dismiss for failure to state a claim upon which relief could be
granted.2

See Atieh v. Riordan, No. 09-10977, 2012 WL 4498909, at

1

The district court had jurisdiction over such a suit
pursuant to the judicial review provisions of the Administrative
Procedure Act (APA), 5 U.S.C. § 706. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
2

The defendants are Denis C. Riordan, Director, Boston
Service Center; Jeh C. Johnson, Secretary, Department of Homeland
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*5 (D. Mass. Oct. 2, 2012); see also Fed. R. Civ. P. 12(b)(6).

We

vacated the order of dismissal on procedural grounds, without
reaching the merits.

See Atieh v. Riordan, 727 F.3d 73, 77 (1st

Cir. 2013).
Remitted to the district court, the parties cross-moved
for summary judgment on the issue of whether the administrative
record adequately supported the denial of I-130 relief.

The

district court granted summary judgment in the government's favor,
thus affirming the BIA's final order.3

See Atieh v. Riordan, No.

09-10977, 2014 WL 3749430, at *1 (D. Mass. July 30, 2014).
II.

ANALYSIS
Under the APA, a reviewing court may set aside an

agency's decision if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law," such as
if it is "unsupported by substantial evidence." 5 U.S.C. § 706(2);
see River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st

Security; Loretta E. Lynch, United States Attorney General; Carmen
M. Ortiz, United States Attorney, District of Massachusetts; and
Michael Aytes, Director, USCIS. For ease in exposition, we refer
to them collectively as the government.
3

The Atiehs' amended complaint does not distinguish between
the two adverse BIA decisions.
The district court determined,
however, that "the denial of the first [I-130] petition was
effectively superseded by the denial of the second petition."
Atieh, 2012 WL 4498909, at *1.
The Atiehs have not challenged
this determination, so we focus the lens of our inquiry on the
BIA's denial of the most recent I-130 petition.
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Cir. 2009).

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This standard is quite narrow: a reviewing court "may

not substitute its judgment for that of the agency, even if it
disagrees with the agency's conclusions."

River Street Donuts,

558 F.3d at 114. Consequently, judicial review of agency decisions
is

"highly

deferential."

Id.

If

the

agency's

decision

is

supported by any rational view of the record, a reviewing court
must uphold it.

See id.

Because both the district court and this court are bound
by the same standard of review, our review of the district court's
decision in an APA case is de novo.

See Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 144 (1st Cir. 2007).

Thus, our review in

this case is, in effect, direct review of the BIA's decision.
With the standard of review in place, we turn to the
Immigration and Nationality Act (the Act). Under the Act, an alien
may achieve lawful permanent resident status if he qualifies as an
"immediate

relative"

of

a

U.S.

citizen.

See

8

U.S.C.

§ 1151(b)(2)(A)(i); see also Taing v. Napolitano, 567 F.3d 19, 21
(1st Cir. 2009).
includes

For this purpose, the term "immediate relative"

children,

parents,

and

spouses.

See

8

U.S.C.

§ 1151(b)(2)(A)(i).
To obtain the benefit of these provisions, an interested
citizen must file an I-130 petition with the Attorney General on
behalf

of

her

§ 1154(a)(1)(A)(i).

immediate

relative/alien.

See

id.

Where the immediate relative/alien is a

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spouse, the Act provides for especially careful scrutiny of the
petition. If the Attorney General determines either that the alien
entered into a marriage "for the purpose of evading the immigration
laws" or that the alien "attempted or conspired" to do so, the
alien will be rendered ineligible for lawful permanent resident
status.

See id. § 1154(c).
Here, moreover, yet another hurdle must be cleared. When

an alien enters into a marriage after the government has initiated
removal proceedings — as Fuad did — the alien must carry the burden
of demonstrating, by clear and convincing evidence, that he entered
into the marriage in good faith.
An

agency's

finding

See id. § 1255(e)(3).
regarding

the

bona

marriage is normally regarded as a finding of fact.

fides

of

a

See Agyei v.

Holder, 729 F.3d 6, 14 (1st Cir. 2013); Krazoun v. Ashcroft, 350
F.3d 208, 210-12 (1st Cir. 2003). Thus, such a finding is reviewed
under the substantial evidence standard.

See Agyei, 729 F.3d at

13; Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012).

This

means that a court "cannot contravene the agency's factfinding
unless a reasonable adjudicator would be compelled to reach a
contrary conclusion."

Agyei, 729 F.3d at 13.

Within this rubric,

a credibility determination is a finding of fact; and we will
uphold such a finding so long as the agency "articulate[s] specific
and cogent reasons" to support its view.
F.3d 96, 101 (1st Cir. 2014).

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Ahmed v. Holder, 765

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This brings us to the Atiehs' arguments on appeal. Their
asseverative array boils down to a plaint that the BIA erred in
concluding

that

Specifically,

they

Fuad's
argue

first
that

the

marriage
BIA

was

fraudulent.

misconstrued

certain

evidence, ignored other evidence indicating that Fuad's first
marriage was bona fide, and failed to consider the record in its
entirety.

We address these arguments as a seamless whole.
The BIA relied heavily on the trial-level decision of

USCIS, which gave ample scrutiny to the record (including the
interviews with the Atiehs and the various affidavits).

Several

key facts led the agency to its conclusion that Fuad's first
marriage was fraudulent.


We enumerate some of those facts.

Fuad married Jamileh only after removal proceedings had been
instituted against him.



He entered into that marriage notwithstanding a demonstrated
romantic interest in Raniah.



During his USCIS interview in March of 2006, Fuad acknowledged
not only that his parents had pressured him to marry Jamileh
but also that both he and his parents had hoped that the
marriage would prove to be a vehicle for obtaining lawful
permanent resident status.



Fuad admitted that he had unsuccessfully pursued a romantic
relationship with his present wife even before he married
Jamileh.
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

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The bank statements and other data in the record showed little
or no commingling of funds between Fuad and Jamileh during
their marriage.

These facts, when viewed in concert, were sufficient to support
USCIS's inference that Fuad had never intended to have a lasting
marriage with Jamileh but, rather, had used his first marriage
only as a contrivance to avoid deportation and pave the way for
securing a favorable immigration status.
supportably

found

that

the

record,

The BIA agreed: it

viewed

in

its

totality,

indicated that "[Fuad's] intention all along was to marry [Raniah]
and not remain married to [Jamileh]."

There is no principled way

for us to say that the BIA's determination lacked a rational basis.
The BIA marshalled specific reasons for finding Fuad's first
marriage fraudulent and cogently explained its reasoning.
is exigible.

See Ahmed, 765 F.3d at 101.

No more

After all, the agency

is in the best position to gauge the inferences to be drawn from
the facts, see Syed v. Ashcroft, 389 F.3d 248, 251-52 (1st Cir.
2004), and we have no basis here for second-guessing its assessment
of those facts.
This is especially true due to the weight of the burden
that the Atiehs must shoulder.

Once the BIA decided the marriage

fraud issue against them, they had an obligation to point to
evidence "'so compelling that no reasonable fact finder could fail'
to find that [Fuad] had a bona fide marriage."

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Mendes v. INS, 197

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F.3d 6, 13 (1st Cir. 1999) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992)).

They have not come close to fulfilling

that obligation.
The Atiehs demur, offering a salmagundi of reasons why
the

agency's

decision

is

infirm.

None

of

these

reasons

is

persuasive.
To begin, the Atiehs argue that the BIA misconstrued
several key pieces of evidence, such as Fuad's statements about
hoping to obtain lawful permanent resident status through his
marriage to Jamileh and his admission about his prior courtship of
Raniah.

As to the former, the Atiehs suggest that the involvement

of Fuad's parents in his first marriage proves that this was
intended to be a lasting union.

As to the latter, they suggest

that Fuad's initial pursuit of Raniah demonstrated only that he
was "looking for a permanent wife."

There may be plausible

interpretations

particularly

of

Fuad's

admissions,

given

the

evidence that the Atiehs submitted describing the cultural norms
surrounding an arranged marriage.

As even the BIA acknowledged,

"arranged marriages are not fraudulent per se, so long as the
intent of the parties at the time the marriage was entered into
was to establish a life together."

But Fuad's interpretations are

not the only reasonable ones.
This is a critical distinction.

Under the deferential

standard of review, we may not disturb the agency's factfinding

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unless "a reasonable adjudicator would be compelled to reach a
contrary conclusion."

Agyei, 729 F.3d at 13.

That benchmark

cannot be achieved when — as in this case — the raw facts support
competing but reasonable inferences.

See Villafranca v. Lynch,

___ F.3d ___, ___ (1st Cir. 2015) [No. 14-1881, slip op. at 4];
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219-20 (1st Cir.
2007).
Next, the Atiehs submit that Fuad's admissions cannot
justify the denial of an I-130 petition because they do not
constitute direct admissions that he is guilty of marriage fraud.
This is pure codswallop: although an admission of guilt is surely
sufficient for a finding of marriage fraud, such an admission is
not a sine qua non for such a finding.

See, e.g., Mendes, 197

F.3d at 13 (upholding BIA's finding that alien committed marriage
fraud in the absence of any admission of guilt).

It is perfectly

appropriate for an agency to rely on reasonable inferences in
determining the existence vel non of marriage fraud.4

4

In all events, even if particular facts "may not have been
sufficient individually to establish a finding of fraud," those
same facts, when taken together, may provide "ample support" for
an agency to infer a fraudulent marriage. Agyei, 729 F.3d at 15;
cf. Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25,
34 (1st Cir. 2012) (noting, with regard to evidentiary
presentations, that "the whole is sometimes greater than the sum
of the parts").
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We find equally unconvincing the Atiehs' contention that
the

BIA

should

have

given

greater

submitted

by

Jamileh,

Jamileh's

Weighing

the

evidence

is,

weight

parents,

within

wide

to

and

the

affidavits

Fuad's

limits,

the

parents.
exclusive

province of the agency, see Ayeni v. Holder, 617 F.3d 67, 72-73
(1st Cir. 2010) — and those limits have not been exceeded here.
To the contrary, the agency fully discharged its duty by fairly
considering

the

Atiehs'

submissions

and

"articulat[ing]

its

decision in terms adequate to allow a reviewing court to conclude
that the agency has thought about the evidence and the issues and
reached a reasoned conclusion." Raza v. Gonzales, 484 F.3d 125,
128 (1st Cir. 2007).

On this record, then, we lack the authority

to "substitute [our] judgment for that of the agency."

River

Street Donuts, 558 F.3d at 114.
For essentially the same reasons, we reject the Atiehs'
assertion that the agency erred in failing fully to consider
evidence relating to the post-marriage conduct of Fuad and Jamileh.
The record makes manifest that the agency considered the postmarriage evidence but found — reasonably, in our view — that this
evidence did not inure to the Atiehs' benefit.
The short of it is that this is a case of dueling
inferences drawn from largely undisputed facts.

We have said

before — and today reaffirm — that when the BIA is faced with "two
plausible but conflicting inferences from a body of evidence, the

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BIA's choice between those inferences is by definition supported
by substantial evidence."
Cir. 2008).
III.

Ruiz v. Mukasey, 526 F.3d 31, 37 (1st

So it is here.

CONCLUSION
We need go no further. For the reasons elucidated above,

the district court's judgment is

Affirmed.

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