Ali, et al v. US, et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-2027]

Case: 16-2027

Document: 00117123091

Page: 1

Date Filed: 02/28/2017

Entry ID: 6072565

United States Court of Appeals
For the First Circuit
No. 16-2027
KAMAL ALI, ISRAA HASSAN,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA; JEFFERSON B. SESSIONS, III, Attorney
General of the United States; JOHN F. KELLY, Secretary of the
U.S. Department of Homeland Security; LORI SCIALABBA, Acting
Director of U.S. Citizenship and Immigration Services; ANDREA
ROGERS, Field Office Director of the U.S. Citizenship and
Immigration Services Manchester Field Office,*
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Andrea K. Johnstone, U.S. Magistrate Judge]

Before
Lynch, Thompson, and Barron,
Circuit Judges.

*

Pursuant to Fed. R. App. P. 43(c)(2), the following
substitutions have been made among the appellees: Jefferson B.
Sessions, III, Attorney General of the United States, for former
Attorney General Loretta E. Lynch; John F. Kelly, Secretary of the
U.S. Department of Homeland Security, for former Secretary Jeh
Charles Johnson; Lori Scialabba, Acting Director of U.S.
Citizenship and Immigration Services, for former Director Leon
Rodriguez; and Andrea Rogers, Field Office Director of the U.S.
Citizenship and Immigration Services Manchester Field Office, for
former Director Anthony Violanti.

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Nathan P. Warecki, with whom Nixon Peabody LLP, Anna Barbara
Hantz, and Sheehan Phinney Bass & Green, PA were on brief, for
appellants.
Terry L. Ollila, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellees.

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LYNCH, Circuit Judge.

Date Filed: 02/28/2017

Entry ID: 6072565

Israa Hassan, a U.S. citizen,

filed an I-130 petition seeking permanent resident status for her
noncitizen husband, Kamal Ali.

See 8 U.S.C. §§ 1151(b)(2)(A)(i),

1154(a)(1)(A)(i); 8 C.F.R. § 204.2(a).

After interviewing Ali and

Hassan, U.S. Citizenship and Immigration Services ("USCIS") issued
a Notice of Intent to Deny ("NOID") the petition because of the
agency's determination that Ali's prior marriage to Priscilla
Lewis was "entered into for the purpose of evading the immigration
laws."

8 U.S.C. § 1154(c).

Ali and Hassan submitted additional

evidence in response to the NOID, including affidavits from Ali
and Lewis, aiming to prove that Ali's first marriage had not been
fraudulent.

Not persuaded to change its decision, USCIS denied

the petition.
On appeal from an adverse judgment against them in their
lawsuit challenging that denial, Ali and Hassan argue that USCIS
did not afford them sufficient procedural due process, required by
the Constitution, in denying the I-130 petition. Even if we assume
arguendo

that

the

plaintiffs

are

entitled

to

some

form

of

constitutional due process from an interest in Ali having permanent
resident status through the petition, the district court properly
held that the plaintiffs have not shown how the additional process
they seek would have made any difference to the outcome.

See Ali

v. United States, No. 15-cv-201-AJ, 2016 WL 3190190, at *7, *8

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(D.N.H. June 7, 2016).

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We affirm the district court's grant of

summary judgment in the government's favor.
I.
Ali, a native of Sudan, entered the United States in
1988 on a student visa to attend Long Island University ("LIU").
He never enrolled and was living in Boston by 1989.

In Boston he

met Priscilla Lewis, a U.S. citizen, and they married in 1993.
On November 2, 1995, Ali applied for adjustment of status
under
§

the

1153(c).

("INS")1

Diversity

Immigrant

When

the

requested

an

Visa

Immigration
original

program.

and

copy

See

8

Naturalization

of

the

U.S.C.
Service

photocopied

and

translated high school diploma he had submitted, Ali provided an
ostensible original that was inconsistent with the photocopy.

The

INS concluded that the purported original diploma "c[ould] not be
the original of the photocopy."

When the INS again requested a

true original, Ali's counsel responded that both versions of the
document contained the same information and that "there [wa]s no
original to the photocopy that was originally submitted."

The INS

concluded that Ali had failed to submit a valid original diploma.
See 8 C.F.R. § 103.2(b)(5).

On November 19, 1996, the INS denied

Ali's petition to adjust status, citing the false documentation.

1

In 2003, USCIS and other components of the Department of
Homeland Security assumed the functions of the now-defunct INS.
See Ali, 2016 WL 3190190, at *1 n.2.
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After Ali's first failed effort to adjust his status,
Lewis filed an I-130 petition in October 1997 on Ali's behalf.
The petition, signed by Lewis and Ali, stated that the couple had
lived together in Manchester, New Hampshire since August 1997.
Before the couple's scheduled interview with the INS in January
1998, however, Ali contacted INS officials and asked to reschedule,
stating that he and Lewis had separated and wanted time to work
toward a reconciliation.
times after that.

The interview was postponed two more

At a scheduled meeting in June 1998, Ali

appeared with a woman who claimed to be Lewis, but she had brought
no valid photo identification despite prior instructions to do so.
An INS investigation into Ali's and Lewis' marriage
found additional information that cast doubt on the marriage's
bona fides.

For example, the investigators obtained Massachusetts

welfare records that showed that Lewis had been receiving welfare
checks at the same Boston address since 1985. Other records stated
that Ali had lived at several different addresses in Massachusetts
and New Hampshire between 1993 and 1998.

No records linked Lewis

to any address in New Hampshire.
In September 1999, two INS agents interviewed Lewis in
Boston, finding her at the street address to which Massachusetts
had been sending her welfare checks.

During the interview, as

described by a report signed by one of the INS agents, Lewis stated
that Ali had offered her $1000 to marry him so that he could obtain

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a green card -- that is, permanent resident status.

Entry ID: 6072565

She added

that after she and Ali separated, in 1998, Ali had asked her to
give the immigration authorities the false impression that the two
of them were still living together.
After the interview, Lewis withdrew the I-130 petition
that she had filed on Ali's behalf.

Her explanation of the

withdrawal, which was handwritten and signed by her, reiterated
that Ali had asked her to lie about their relationship and had
offered her $1000 to marry him.

The plaintiffs have not disputed

that Lewis signed the statement, and the INS agent verified that
Lewis had signed.

The statement is handwritten, in the first

person, and appears to be in the same handwriting as her signature
on the statement and on the I-130 petition.
When

an

INS

agent

contacted

the

LIU

registrar,

he

recovered information that Ali had never attended the school.

On

November 17, 1999, an INS agent spoke to Ali, and Ali admitted he
had never attended.
Ali and Lewis divorced in May 2002.

Ali and Hassan, the

plaintiffs in this case, married in April 2003.

Hassan filed an

I-130 petition on Ali's behalf in July 2007, the year after she
became

a

naturalized

U.S.

citizen.

A

USCIS

officer

in

the

Manchester Field Office interviewed Ali and Hassan in January 2008.
During that interview, Ali later alleged, he was told about Lewis'
1999 statement.

At the interview, while under oath, he denied

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paying Lewis to marry him.

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In the final decision that USCIS

ultimately issued, USCIS said that Ali also confirmed in the
interview that he and Lewis had "primarily" lived apart "during
the duration of their marriage" and, USCIS said, he stated that
they "were not, in fact, living together in 1998 when the two were
asked to appear for an [INS] interview."
On August 25, 2008, the Manchester Field Office Director
("the Director") sent Hassan a NOID. The NOID explained that USCIS
had reviewed the record and concluded that Ali's marriage to Lewis
had been fraudulent.

The NOID relied most heavily on Lewis'

statements, in her 1999 interview with INS agents, that she had
not been living with Ali "at the time of the June 1998 interview"
and that Ali had offered to pay her "$1000 to marry him so he
c[ould] get a green card." The NOID then stated that "the evidence
present in the file, mainly in the form of Ms. Lewis' sworn
testimony, weigh[ed] heavily in the decision of [Hassan's] visa
petition for Mr. Ali" and that "[t]he file lack[ed] essential
evidence that clearly indicate[d] Mr. Ali and Ms. Lewis lived
together

as

husband

and

wife."

The

NOID

stated

that

"[f]urthermore" Ali's statements at the January 2008 interview
supported its conclusions.

The NOID offered Hassan and Ali a

chance to respond and "to establish why [Hassan's I-130 petition]
should not be denied."

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On October 25, 2008, Hassan and Ali submitted additional
evidence to USCIS in response to the NOID.

The response included

an

wife,

affidavit

from

Lewis,

Ali's

former

in

which

she

contradicted her September 1999 interview and signed statement by
asserting that she had married "out of love and not for money,"
that Ali had "never offered [her] any money to marry him," and
that she had "never told anyone [from INS] that . . . Ali offered
[her] money for a green card."

But Lewis did not deny that she

had met with an INS agent in 1999.

Nor did she deny that she had

executed and then signed the 1999 interview statement or that the
agent had witnessed and confirmed her signature.

Lewis' new

affidavit also stated that she had "destroyed a lot of the proof
of [their] life together, such as photos, because [she had been]
angry at [their] separation."
In response to the NOID, Hassan and Ali, represented by
counsel, also submitted, in addition to Lewis' recantation, an
affidavit from Lewis' mother stating that Lewis had moved to New
Hampshire while married to Ali, as well as bills sent to Ali's New
Hampshire address with Lewis' name on them.
In Ali's own affidavit, he asserted that Lewis had lived
with him in New Hampshire from July or August 1997 until at least
June 1998.

That claim was inconsistent with what the agency says

were Ali's statements under oath at the January 2008 interview.

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Immigration

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Services

Date Filed: 02/28/2017

Officer

Susan

Entry ID: 6072565

Coller,

in

a

memorandum to the case file dated October 31, 2008, recommended
denying the I-130 petition.

The memorandum drew attention to the

false documentation Ali had submitted in support of his Diversity
Immigrant Visa application, and to the fact that "[t]he new
affidavits [we]re self-serving to the latest I-130."
On November 14, 2008, USCIS sent Hassan a denial of her
I-130 petition.

The denial reiterated that visa petitioners bear

the burden of establishing their eligibility for the benefit
sought.
1966).

See Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA
It pointed out that Lewis' new affidavit "contradict[ed]

her previous oral and written testimonies" and that the new
evidence meant to prove Lewis' cohabitation with Ali in New
Hampshire

was

inconsistent

with

her

receipt

of

Massachusetts

welfare benefits at her Boston address through at least 1998.

It

concluded that "USCIS ha[d] clear and convincing evidence that
[Ali] had previous involvement in a fraudulent marriage."
The USCIS denial informed Hassan that she could file a
motion to reopen.

See 8 C.F.R. § 103.5(a)(2) ("A motion to reopen

must state the new facts to be provided in the reopened proceeding
and be supported by affidavits or other documentary evidence.").
Hassan did not file such a motion, nor at any time between the
NOID and the final decision did she request to file additional

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material beyond what was filed in response to the NOID, or request
to have an evidentiary hearing.
Hassan
Appeals,

sought

arguing

review

primarily

support the denial.

from

that

the

Board

substantial

of

Immigration

evidence

did

not

She did not argue that the agency was obliged

to provide her with cross-examination or that she had requested
it.

The BIA dismissed her appeal on April 19, 2011, finding that

"the record contain[ed] substantial and probative evidence of
prior marriage fraud."
On June 2, 2015, Ali and Hassan filed this lawsuit in
federal court.

Their complaint alleged that USCIS had violated

their Fifth Amendment procedural due process rights by denying the
I-130

petition

hearing.
2016,

without

offering

a

pre-decision

This is the only claim presented on appeal.2

the

magistrate

judge

issued

an

government's motion for summary judgment.

order

evidentiary
On June 7,

granting

the

With respect to the due

process claim, the magistrate judge concluded that "even assuming
that the plaintiffs have a constitutionally protected liberty
interest in this matter, due process did not require an evidentiary
hearing."

Ali, 2016 WL 3190190, at *6.

2

As to whether the

The complaint also alleged (1) that USCIS had
erroneously focused its inquiry on 1997, when Lewis filed her I130 petition, rather than on 1993, when she married Ali; and
(2) that USCIS' decision was not supported by substantial evidence.
The district court rulings on those issues are not appealed.
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plaintiffs had shown prejudice from the purported denial of due
process, she concluded that "the plaintiffs ha[d] not shown how a
cross-examination of Lewis -- or of immigration agents concerning
a seventeen-year-old interview with Lewis -- would potentially
change [USCIS'] credibility determinations or ultimate decision."
Id. at *8.

She also decided the other issues in the defendants'

favor.
On appeal, the plaintiffs focus exclusively on the due
process issue and no longer press their other arguments.
II.
Federal jurisdiction was invoked in this case under the
Administrative Procedure Act ("APA"), which instructs federal
courts to "hold unlawful and set aside agency action, findings and
conclusions found to be . . . contrary to constitutional right,
power, privilege, or immunity."

5 U.S.C. § 706(2), (2)(B).

Here,

the claimed constitutional procedural due process violation is the
failure sua sponte to provide a pre-decision evidentiary hearing,
at which the plaintiffs say they would have cross-examined Lewis
and the INS agents who interviewed her, in an effort to rebut
USCIS' evidence of marriage fraud.
The APA also instructs courts to take "due account . . .
of the rule of prejudicial error."

Id. § 706.

That statutory

language references the harmless error standard that appellate
courts normally apply when reviewing lower court decisions or

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administrative action.
406–07 (2009).

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See Shinseki v. Sanders, 556 U.S. 396,

Indeed, the Supreme Court has characterized § 706

as an "administrative law . . . harmless error rule."

Nat'l Ass'n

of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659–60 (2007)
(quoting PDK Labs. Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786,
799 (D.C. Cir. 2004)) (choosing not to remand to agency because
purported agency error "had no effect on the underlying agency
action being challenged").
Whether or not Hassan or Ali has a protected liberty
interest invoked by the denial of the I-130 petition,3 and whether
or not that interest was offended by the procedures followed, the
plaintiffs have not met their burden to show how the purported
error prejudiced them.
Hassan and Ali never asked USCIS for the opportunity to
put on additional evidence, nor for an evidentiary hearing.

Their

complaint states that no such hearing occurred, but does not allege
that the plaintiffs asked for one when they responded to the NOID.
And even assuming the agency, rather than the plaintiffs, would be

3

We will assume arguendo that Kerry v. Din, 135 S. Ct.
2128 (2015), does not doom this suit by foreclosing any due process
claim at all. In our view, Din did not produce a definitive answer
to the question of whether a citizen has a liberty interest,
warranting due process, in residing in the United States with his
or her noncitizen spouse.
And we will also assume that Din's
holding that the process given there -- much less than was given
here -- was sufficient, see id. at 2139–41 (Kennedy, J.,
concurring), does not control the outcome of this case, which
involves a noncitizen husband already in the United States.
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responsible for producing the two agents involved in Lewis' 1999
interview (an assertion not made by the plaintiffs), the plaintiffs
never asked for production of the agents, much less to examine the
agents about events that took place seventeen years earlier.4
There is no reason to think that, if an evidentiary
hearing occurred, USCIS would not continue to rely on its own
official records contemporaneous to the 1999 interview, as well as
Lewis' signature affirming what appears to be her own handwritten
statement, and suddenly credit Lewis' 2008 affidavit claiming she
had never made the statement.
recanting

affidavit

was

Lewis' credibility as to the 2008

severely

undercut

by

the

flat

inconsistency between the contemporary statement and the later
statement, and by her withdrawal of the petition.

Her statements

that she had resided with Ali in New Hampshire for a period are
undercut by the Massachusetts welfare records.

As for the INS

agents who interviewed Lewis, who are the only other persons aside
from

Lewis

that

the

plaintiffs

seek

to

have

testify

at

an

evidentiary hearing, the plaintiffs have made no showing that the
agents would be available to be interviewed or would have anything
different to say about the 1999 interview after seventeen years.
Further, to the extent the plaintiffs argue that Lewis'
credibility might have been enhanced by live testimony or further

4

The record is silent as to whether the two agents are
still employed by USCIS or by any other government agency.
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evidence from her, Lewis acted as a witness for the plaintiffs in
the post-NOID proceedings, not for the agency.

She knew of the

other evidence undermining her newfound recantation, but addressed
none of it by affidavit.

Indeed, no offer of proof was made to

either the agency or the district court as to what the other
evidence was that the plaintiffs wished to produce. The plaintiffs
simply have not shown how their preferred procedure would have
made any difference.
III.
We affirm the judgment of the district court.

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