Bassam Hanna v. Loretta Lynch
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: A092-782-972. Copies to all parties and the district court/agency [999793131]. [15-1365]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1365
BASSAM GERGES HANNA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
March 22, 2016
Decided:
April 12, 2016
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition for review denied by unpublished opinion. Senior Judge
Davis wrote the opinion, in which Judge Wynn and Judge Diaz
concurred.
ARGUED: Soulmaz Taghavi, FAYAD LAW, PC, Henrico, Virginia, for
Petitioner.
Alison Marie Igoe, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Tamar
Jones, FAYAD LAW, PC, Richmond, Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Christopher C. Fuller, Deputy Chief, National
Security Unit, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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Unpublished opinions are not binding precedent in this circuit.
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DAVIS, Senior Circuit Judge:
Following a removal hearing, an immigration judge (“IJ”)
found Petitioner Bassam Gerges Hanna, a national of Lebanon and
a permanent resident of the United States, removable for being
inadmissible
at
the
Section
237(a)(1)(A)
(“INA”)
(codified
time
of
at
of
the
8
his
adjustment
Immigration
U.S.C.
§
and
of
status
under
Nationality
1227(a)(1)(A)),
and
Act
for
committing marriage fraud under Section 237(a)(1)(G)(ii) of the
INA (codified at 8 U.S.C. § 1227(a)(1)(G)(ii)). In this timely
petition for review, Hanna argues that the IJ erred in three
distinct respects: (1) in finding that the government satisfied
its
burden
of
proving
removability
by
clear
and
convincing
evidence; (2) in depriving him of due process insofar as the IJ
admitted into evidence a sworn statement by his ex-spouse while
not procuring the ex-spouse’s presence at the removal hearing,
thereby failing to make her available for cross-examination; and
(3) in excluding evidence bearing on the government’s alleged
motive in seeking his removal. We discern no error and deny the
petition for review.
I.
Hanna originally entered the United States from Lebanon in
1985 as a B-2 non-immigrant for pleasure. Beginning in 1994,
Hanna operated a convenience store and then worked in used car
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sales in North Carolina. On May 15, 2001, Hanna married Amy
Williford at a Raleigh, North Carolina courthouse.
The
dispositive
factual
and
legal
issue
at
the
removal
hearing before the IJ was whether the government proved by clear
and
convincing
entered
into
evidence
in
order
that
to
the
marriage
provide
Hanna
was
with
fraudulently
an
immigration
benefit. The IJ so found in a comprehensive written opinion, and
the
Board
of
Immigration
Appeals
(“BIA”)
sustained
the
IJ’s
conclusion. The conflicting evidence bearing on the question is
summarized below.
A.
The government sought to make its case for removability by
calling two witnesses, Hanna and Department of Homeland Security
(“DHS”) Agent Christopher Brant, coupled with the introduction
of several exhibits, including numerous documents from Hanna’s
immigration file that had been executed by Hanna and Williford.
Hanna offered his own testimony, together with affidavits from
three
of
his
friends
who
affirmed
they
spent
time
with
the
couple during the marriage, in support of his contention that
his marriage to Williford was entirely bona fide, if troubled.
In its totality, the testimonial and documentary evidence tended
to
establish
the
following
factual
events.
4
and
procedural
course
of
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1.
In
2008,
as
part
of
a
larger
money
laundering
investigation, Agent Brant commenced an investigation into the
export
of
certain
vehicles
to
Africa
and
the
Middle
East,
focusing on the principals, including Hanna, of an enterprise
known as Cary Auto Sales located in Cary, North Carolina. While
reviewing Hanna’s immigration records, Agent Brant discovered a
“tip line call” from January 23, 2007, indicating that Hanna
might have engaged in marriage fraud. Upon Agent Brant’s review
of Hanna’s and Williford’s motor vehicle records, his suspicions
were aroused when he compared the address changes in Williford’s
DMV records with the dates and addresses reported in documents
from
Hanna’s
immigration
file.
Specifically,
Agent
Brant
uncovered two inconsistencies. First, he noticed that Williford
had
changed
her
claimed
addresses
to
Hanna’s
addresses
days
prior to Hanna’s immigration interviews, and then had changed
her
addresses
to
her
mother’s
addresses
following
the
interviews. Agent Brant had seen this behavior in other cases,
and
it
was
indicative
of
fraud.
Second,
when
Williford
was
charged with speeding in February 2003, during a period when she
and
Hanna
were
ostensibly
living
together,
she
gave
law
enforcement officers her mother’s address in Siler City, North
Carolina.
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Agent Brant sought to question Williford about the apparent
discrepancies. Williford originally declined to speak with him,
but she later agreed to do so with her lawyer present. In a
sworn statement, Williford confessed to Agent Brant that she had
married Hanna for financial remuneration in return for assisting
Hanna
with
his
immigration
status. 1
Regarding
Williford’s
admissions to Agent Brant contained in the statement he took
from her, Hanna testified at the removal hearing that Williford,
believing he was very wealthy, had demanded $1,000,000 from him,
which he had refused to pay. Therefore, he surmised, she had
provided the statement to Agent Brant as a form of revenge.
2.
The details of Williford’s motor vehicle record, as well as
Hanna’s
immigration
ultimately
justified
file
Agent
and
removal
Brant’s
hearing
suspicions.
testimony,
In
a
2001
biographic information form from his immigration file, Hanna had
1
In her sworn statement, Williford attested that the
statement was true and was being given freely and voluntarily.
She stated that the wedding was witnessed by two strangers who
were also getting married at the courthouse. There were no
pictures and, while her mother knew about the wedding, her
father did not. She stated that she and Hanna did not go on a
honeymoon and did not consummate the marriage. Hanna paid her
$1,000 at the time of the wedding and $1,000 at the time of the
divorce, and he also gave her a 1989 Honda Accord. She stated
that she had married Hanna for the money and to assist him in
adjusting his immigration status. The couple never lived
together.
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stated that he lived in Madison, New Jersey, from January 2001
to May 2001. This assertion arguably conflicted with Hanna’s
removal hearing testimony that he and Williford had dated for
several months in early 2001 in North Carolina, just prior to
their
May
wedding,
2001
wedding.
Williford
Relative
with
On
filed
U.S.
a
August
14,
Form
I-130
Citizenship
and
2001,
soon
after
Petition
for
Immigration
the
Alien
Services
(“USCIS”), seeking a visa for Hanna on the basis that he was now
a relative of a U.S. citizen. In the I-130 petition, Williford
asserted that she and Hanna lived together on West Skylark Drive
in Cary, North Carolina. She had changed her address at the DMV
to
West
Skylark
petition.
On
Drive
two
September
24,
months
prior
to
filing
2001,
Hanna
filed
a
the
I-130
Form
I-485
Application to Register Permanent Resident or Adjust Status with
the
USCIS.
In
the
I-485
application,
Hanna
asserted
that
he
qualified for permanent resident status because he was married
to
a
U.S.
approved.
citizen
He
also
and
Williford’s
asserted,
falsely,
I-130
that
petition
he
had
had
been
never
been
charged with any crimes, as he had in fact been convicted of
larceny. In March 2002, just six months after Hanna filed the I485 application, Williford changed her address at the DMV to her
mother’s home on Derry Down Lane in Apex, North Carolina.
During a USCIS interview near the middle or end of 2002,
Hanna
had
denied
any
criminal
7
convictions.
At
the
removal
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hearing, Hanna testified that he was unaware that he had not
disclosed
the
criminal
charges
in
the
I-485
application;
he
thought that he had provided his criminal record to be added to
his immigration file but did not recall when. He also stated
that he and Williford lived together on Shady Meadow Circle in
Cary, North Carolina. According to her DMV records, Williford
changed her address to Shady Meadow Circle two days before the
interview. In March 2003, just a few months after the interview,
Williford changed her address again to her mother’s new house in
Siler City, North Carolina. That change was consistent with a
speeding ticket that Williford received in February 2003, which
also listed her mother’s Siler City address.
During
the
removal
hearing,
Hanna
addressed
Williford’s
frequent address changes, testifying that Williford lived with
her mother while they dated, but that he and Williford lived
together most of the time during the marriage. Williford would
frequently
leave
their
home
following
arguments
to
live
temporarily at her mother’s home, sometimes for weeks or months
at a time.
Other
evidence
further
indicated
an
atypical
matrimony.
According to Hanna’s removal hearing testimony, he met Williford
in
1996
as
his
convenience
store,
called
Cary
Beverage,
was
located next to a mechanic shop operated by Williford’s aunt and
uncle. He and Williford started dating in early 2001 and had
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dated for three or four months by the time they wed, but they
“really did not get officially engaged.” A.R. 141. He asked her
to marry him in or about February or March 2001. No friends or
family
accompanied
them
to
the
courthouse
for
the
wedding
because, although Williford’s mother offered to come, members of
his own family could not come and so he told Williford’s mother
not to attend. He testified that he married Williford because he
loved her and denied that he offered to pay Williford for the
marriage. They bought their wedding rings at the mall and then
honeymooned in Myrtle Beach a few weeks after the wedding.
During the marriage, Hanna made eight trips to Lebanon,
most of them for more than four weeks; Williford did not join
him on any of the trips because, according to Hanna, she was
unnerved
by
the
war
in
parents
but
had
spoken
Lebanon.
Williford
to
by
them
never
telephone,
met
and
Hanna’s
she
knew
Hanna’s two brothers who lived in North Carolina.
According to Hanna’s removal hearing testimony, in March
2006,
Williford
told
Hanna
that
she
wanted
a
divorce.
Hanna
filed for divorce employing a lawyer selected by Williford, but
Williford
did
proceedings.
not
When
respond
Hanna
to
signed
or
the
appear
divorce
in
the
paperwork
divorce
at
the
lawyer’s office, and when the divorce was granted in October
2006, he affirmed that he and Williford had been separated for a
year. In other words, he affirmed that they had been separated
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since at least October 2005 and not only as of March 2006. In
addressing this apparent inconsistency, Hanna testified at the
removal hearing that he did not know that he had affirmed they
had been separated for a year because he signed the divorce
documents without reading them.
On July 25, 2007, Hanna filed a second N-400 Application
for Naturalization (the first having been denied). In the 2007
application, Hanna asserted that he had lived on Buckland Mills
Court in Cary, North Carolina, since June 2006, and that he had
lived
there
divorce,
with
his
statements
wife
that
until
compounded
she
moved
the
out
earlier
before
the
discrepancies
about Williford’s address and their date of separation. He also
disclosed his 1995 misdemeanor larceny conviction. Consequently,
his second N-400 application was denied on the ground that he
had
failed
to
application
disclose
and
the
falsely
conviction
testified
that
on
his
he
earlier
had
never
I-485
been
convicted of a crime during his adjustment interview in October
2002.
B.
On September 29, 2011, based on Agent Brant’s findings, the
DHS served Hanna with a notice to appear, charging him with
being
inadmissible
status
Section
under
at
Section
the
time
of
237(a)(1)(A)
237(a)(1)(G)(ii).
Because
10
adjustment
of
and
marriage
Hanna
denied
immigration
fraud
that
he
under
had
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entered into a fraudulent marriage, a contested removal hearing
was held before an IJ on April 5, 2013.
Prior
to
the
removal
hearing,
Hanna
filed
a
motion
in
limine seeking to admit evidence that the removal proceedings
were initiated in bad faith and only because the DHS and the
Department of Justice had failed in several attempts to charge
him with terrorism related activity. He also wished to show that
Williford’s sworn statement was coerced or motivated by revenge.
The IJ denied the motion in limine, concluding that there was no
evidence
of
“malfeasance
by
the
DHS
in
placing
[Hanna]
in
removal proceedings” and that the investigations that gave rise
to the removal proceedings were not relevant to the substantive
removability issues. A.R. 93.
On
July
17,
2013,
the
IJ
issued
a
14-page
decision
sustaining the charges of removability against Hanna. The IJ
first
evaluated
each
witness’s
credibility.
The
IJ
explained
that he found Hanna’s testimony not credible based on a number
of internal inconsistencies and on the basis that some of his
testimony was simply implausible, e.g., that he dated Williford
while she lived in North Carolina and he lived in New Jersey.
The
IJ
found
Agent
Brant’s
testimony
credible
given
his
credentials and that his testimony was consistent with other
evidence.
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Ultimately,
clear
and
the
IJ
convincing
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concluded
evidence
that
that
the
DHS
Hanna
had
shown
into
entered
by
a
fraudulent marriage to benefit his immigration status. The IJ
found
the
suspect,
circumstances
given
that
no
surrounding
family
or
the
courthouse
friends
wedding
attended,
Hanna
purportedly lived in New Jersey during the courtship, and the
wedding occurred a mere two months after his extant immigration
status in the United States had expired.
The
IJ
specifically
found
that
the
couple
had
not
continuously lived together before the alleged separation and
that
the
constant
changes
of
addresses
before
important
immigration dates, and the inconsistencies of Williford’s home
address on legal documents, also indicated that the marriage was
fraudulent. The IJ found that Hanna’s frequent and lengthy trips
abroad without his spouse also evidenced the lack of bona fides
in the marriage.
As for Williford’s sworn statement, the IJ noted that Agent
Brant gave her the opportunity to review the statement and make
changes.
Although
Williford
was
not
present
at
the
removal
hearing, the IJ concluded that the statement was relevant based
on
the
totality
of
the
record.
The
IJ,
however,
gave
the
statement reduced weight because Williford was not subject to
cross-examination.
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Finally, the IJ concluded that Hanna had failed to rebut
the
DHS’s
showing
that
he
is
removable.
Hanna
submitted
affidavits by three of his friends that described the nature of
Hanna’s
marriage,
but
the
IJ
did
not
find
the
affidavits
reliable because the witnesses were biased, the affidavits were
dated after the marriage was called into question, and some of
the
witnesses’
Hanna’s
descriptions
removal
hearing
of
the
testimony.
marriage
For
conflicted
example,
one
with
affiant
claimed that Hanna and Williford had been dating for “several
years” and were seen as a couple as early as 2000. A.R. 248. The
IJ also gave the affidavits limited weight because none of the
affiants testified at the removal hearing. Moreover, although
bank
statements
account
showed
holders,
none
that
of
Hanna
the
and
checks
Williford
drawn
on
were
the
joint
account
contained Williford’s printed name or signature, thus supporting
the inference that the couple was “married . . . in name only.”
A.R. 100.
Hanna appealed the IJ’s decision to the BIA. The BIA agreed
with the IJ that the DHS had proved by clear and convincing
evidence that Hanna “failed to fulfill his marital agreement
with
his
ex-wife,
and
that
he
obtained
his
lawful
permanent
residence through fraud or willful misrepresentation of material
fact.” A.R. 5. It also agreed that Hanna’s evidence of a bona
fide marriage was insufficient to rebut the DHS’s evidence and
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that
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the
IJ
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had
not
erred
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or
abused
his
discretion
in
his
evidentiary rulings. On March 17, 2015, the BIA dismissed his
appeal. This timely petition for review followed.
II.
A.
When “the BIA adopts the IJ’s decision and includes its own
reasons for affirming, we review both decisions.” Djadjou v.
Holder, 662 F.3d 265, 273 (4th Cir. 2011) (quoting Marynenka v.
Holder, 592 F.3d 594, 600 (4th Cir. 2010)). We must uphold the
agency’s decision unless it is “manifestly contrary to the law
and an abuse of discretion.” Id. (quoting Lizama v. Holder, 629
F.3d
440,
444
(4th
Cir.
2011));
see
also
8
U.S.C.
§ 1252(b)(4)(C). The agency abuses its discretion “if it failed
to
offer
a
reasoned
explanation
for
its
decision,
or
if
it
distorted or disregarded important aspects of the applicant’s
claim.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).
We review the agency’s factual findings under a “narrow and
deferential” standard. Djadjou, 662 F.3d at 273 (citing Dankam
v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007)). “We seek to
ensure
that
the
agency’s
factual
findings
are
supported
by
substantial evidence,” which is evidence that “exists to support
a finding unless the evidence . . . was such that any reasonable
adjudicator
would
have
been
compelled
to
conclude
contrary.” Id.; see also 8 U.S.C. § 1252(b)(4)(B).
14
to
the
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Legal
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contentions
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raised
in
the
immigration
context,
including those alleging a denial of due process, are reviewed
de novo. Xing Yang Yang v. Holder, 770 F.3d 294, 302 (4th Cir.
2014); Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th
Cir. 2004).
B.
Hanna contends that (1) the government failed to satisfy
its
burden
of
proving
removability
by
clear
and
convincing
evidence; (2) the admission into evidence of Williford’s sworn
statement without procuring her presence at the removal hearing
so that she could be cross-examined deprived him of due process;
and (3) the exclusion of evidence bearing on the government’s
alleged
motive
in
seeking
his
removal
deprived
him
of
due
process. We consider each of these issues in turn.
1.
Preliminarily, the government argues that Hanna has waived
any
argument
as
to
convincing
evidence
government
argues
whether
that
that
the
Hanna
this
is
DHS
proved
by
clear
and
removal.
The
was
subject
to
so
because
Hanna
failed
to
address his burden to show that no “reasonable person would have
been compelled” to reach the same result. Appellee’s Br. 25, 30.
We reject this contention. In his opening brief, Hanna argues
that the totality of the evidence “does not prove a fraudulent
marriage by clear and convincing evidence.” Appellant’s Br. 18.
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Although
he
launches
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does
the
not
use
appropriate
Pg: 16 of 25
the
magic
argument
words,
and
he,
thus
in
essence,
should
not
be
penalized by elevating form over substance.
In any event, we have no hesitation in concluding that the
IJ’s
findings
and
decision,
as
adopted
by
the
BIA,
were
thorough, well reasoned, and supported by substantial evidence,
and that
the
IJ
satisfactorily
identified
the
bases
for
the
conclusion that he was persuaded clearly and convincingly that
the marriage was fraudulent. No reasonable person would have
been compelled to reach a different result.
Hanna
and
Williford
were
married
only
two
months
after
Hanna’s lawful immigration designation expired. That no family
or friends attended the wedding, and that there were no photos
taken,
suggests
ceremony
as
a
that
solemn
Hanna
and
and
Williford
special
did
occasion
not
as
view
would
the
most
genuinely married couples. Although Hanna testified in a way
that, if believed, might explain these circumstances, on the
whole record, the IJ was not bound to credit that testimony, as
he did not.
Hanna testified that he and Williford had only dated a few
months,
which
by
itself
does
not
erect
a
badge
of
fraud.
Nevertheless, the IJ permissibly discredited Hanna’s testimony
that the courtship was genuine in light of the fact that during
this brief courtship in early 2001, the records show that Hanna
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was
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living
in
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New
Jersey
Pg: 17 of 25
while
Williford
lived
in
North
Carolina.
The
record
shows
that
Williford
changed
her
address
multiple times, assertedly living in two different places at the
same time, particularly in advance of significant immigration
dates. For example, on October 23, 2002, two days prior to a
scheduled immigration interview, Williford changed her address
at the DMV to the Shady Meadow Circle residence, where Hanna had
claimed they lived. Months later, however, in February 2003, in
response to a traffic citation, Williford claimed that she lived
at her mother’s address in Siler City. She officially changed
her address to Siler City at the DMV the following month. In the
same vein, Hanna testified that he and Williford separated in
March 2006 but then noted in his naturalization application that
they lived together in June 2006, and he noted in the divorce
proceedings that they had been separated since at least October
2005.
Hanna
attempted
to
reconcile
these
and
similar
discrepancies by testifying that Williford often left for weeks
at a time following disagreements and chose not to accompany him
on
lengthy
trips
abroad.
The
IJ
permissibly
discounted
the
probative value of this testimony, just as he discounted Hanna’s
assertion
that
he,
a
businessman
with
more
than
a
middling
competence in the English language, did not read the divorce
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paperwork before signing it. Of course, the IJ also permissibly
considered the impeaching effect of Hanna’s failure to disclose
his criminal history, a conviction for larceny, on earlier filed
immigration documents. 2
Indeed, given the binary nature of the question before the
IJ,
Hanna’s
false
or
implausible
testimony,
which
the
IJ
permissibly characterized as “evasive[],” A.R. 95, did more harm
than good. He intended his testimony to show that the marriage
was genuine, but it actually tended to show that the marriage
was
not.
No
reasonable
person
reviewing
the
totality
of
the
evidence in this record, in combination with the IJ and BIA’s
credibility determinations, would be compelled to conclude that
the marriage was bona fide. Accordingly, we conclude that the
government’s showing was sufficient to enable the IJ to find by
2
Other evidence probative of the fraudulent character of
the marriage was likewise permissibly weighed by the IJ. While
the couple purportedly shared bank accounts at Wachovia, all of
the checks that Hanna produced bore only his name and signature.
Hanna could not explain why, if Williford wanted the divorce as
he claimed, she did not respond to the divorce complaint or
appear for the divorce proceedings. He also could not explain
why Williford’s address was altered on her pay stubs to conceal
that her employer recorded her address at her mother’s residence
throughout 2002, the year after their wedding. In other words,
there were several inconsistences apparent in the pertinent
documents from the Hanna immigration file presented during the
removal hearing, and the only evidence to rebut them was Hanna’s
confusing and questionable testimony. Meanwhile, Agent Brant’s
testimony and Williford’s sworn statement were consistent with
and supported by the exhibits.
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the
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clear
and
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convincing
Pg: 19 of 25
standard
that
the
marriage
was
fraudulently entered into.
2.
Hanna next argues that the IJ denied him due process when,
having admitted Williford’s sworn statement, the IJ failed to
compel
Williford
to
attend
the
removal
hearing
and
testify,
thereby depriving Hanna of an opportunity to cross-examine her.
We conclude that Hanna suffered no cognizable prejudice from
Williford’s unavailability for cross-examination. 3
“The immigration judge may receive in evidence any oral or
written statement that is material and relevant to any issue in
the case previously made by the respondent or any other person
during
any
investigation,
examination,
hearing,
or
trial.”
8
C.F.R. § 1240.7(a). Moreover, immigration judges have the power
to
“interrogate,
witnesses.”
Id.
examine,
§
and
1003.10(b).
cross-examine
Because
3
the
aliens
Federal
and
Rules
any
of
Upon Hanna’s testimony that Williford had attempted
unsuccessfully to, in effect, “extort” $1,000,000 from him as
the reason for her adverse admissions, see supra p. 6, the DHS
attempted to procure Williford’s voluntary presence during a
continuance of the removal hearing granted at its request by the
IJ. See A.R. 213-15. The DHS was unable to get her to testify.
The record is silent as to why Williford refused to appear
voluntarily, why she was not subpoenaed, or whether she needed
or required, or was offered or enjoyed if she did, prosecutorial
immunity for her role in the events at issue. Our resolution of
the questions presented does not require us to explore any such
issues.
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Evidence do not apply in immigration proceedings, challenges to
evidentiary
determinations
are
limited
to
due
process
considerations. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir.
2008) (citing Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th
Cir. 2006)). To show a due process violation, the petitioner
must establish that: (1) a defect in the proceeding rendered the
proceeding fundamentally unfair and (2) the defect prejudiced
the outcome of the case. Id.
Williford’s information obviously was highly relevant and
her
statement
whether
the
was
admissible
marriage
was
because
it
directly
fraudulent.
We
discern
related
no
lack
to
of
reliability in the circumstances surrounding the taking of the
statement by Agent Brant. Agent Brant testified under oath as to
his conversation with Williford before she gave the statement,
that she gave the statement with her attorney present, and that
she was given the opportunity to review the statement and make
corrections. No independent evidence contradicted or undermined
anything contained in the sworn statement, and significantly,
the IJ specifically noted that he gave the statement limited
weight because Williford was not subject to cross-examination.
While the opportunity to cross-examine a witness “is even
more important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might
be
perjurers
or
persons
motivated
20
by
malice,
[or]
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vindictiveness,” such as ex-spouses, Ching v. Mayorkas, 725 F.3d
1149, 1158 (9th Cir. 2013) (quoting Goldberg v. Kelly, 397 U.S.
254, 270
(1970)),
the
risk
of
erroneous
deprivation
is
less
present when there is substantial independent evidence that the
marriage is fraudulent. Indeed, “[d]ue process is flexible and
calls
for
such
procedural
protections
as
the
particular
situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). It “is
not a technical conception with a fixed content unrelated to
. . .
[the]
Workers
v.
totality
(apart
circumstances.”
McElroy,
367
of
the
evidence
from
the
Williford
Id.
U.S.
here,
(quoting
886,
895
and
the
statement)
Cafeteria
(1961)).
the
Rest.
Given
substantial
that
&
the
evidence
marriage
was
fraudulent, there is no basis to conclude that the failure to
cross-examine Williford, and the limited weight afforded to her
statement, was fundamentally unfair.
We also fail to see how Hanna was prejudiced by Williford’s
absence. Even without the sworn statement, there was sufficient
unrebutted evidence that the marriage was fraudulent. The IJ
gave several cogent reasons for his conclusion in that regard,
which we will not repeat here. Suffice to say, attempts to show
that the couple lived at the same address or shared the same
assets (the bank accounts) were fraught with inconsistencies and
were themselves self-defeating. Moreover, the IJ found credible
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Brant’s
testimony
relationship.
Williford’s
Hanna
as
Pg: 22 of 25
to
argues,
testimony
the
suspiciousness
somewhat
could
have
of
incongruously,
clarified
some
the
that
of
the
discrepancies noted in the documentary evidence related to where
she was living and other matters. We fail to see how this is so;
her statement fully explained her motivation for completing the
immigration documents as she did.
Finally,
while
Hanna’s
desire
to
challenge
Williford’s
credibility is perhaps understandable, it is his own credibility
(more particularly, his lack thereof) that sunk this ship. We
defer
to
an
IJ’s
credibility
findings
if
those
findings
are
supported by substantial evidence. Tewabe v. Gonzales, 446 F.3d
533, 538 (4th Cir. 2006) (quoting Camara v. Ashcroft, 378 F.3d
361,
367
credibility
(4th
Cir.
finding,
2004)).
the
If
IJ
the
must
IJ
give
makes
an
“specific,
adverse
cogent
reason[s] for his [or her] disbelief.” Id. (second alteration in
original) (quoting Camara, 378 F.3d at 367). The IJ should cite,
for
example,
any
“inconsistent
statements,
contradictory
evidence, and inherently improbable testimony.” Id. (quoting In
re S-M-J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)).
Conversely, an IJ’s credibility determinations are not supported
by
substantial
evidence
if
they
are
“based
on
speculation,
conjecture, or an otherwise unsupported personal opinion.” Id.
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(quoting Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en
banc)).
The IJ considered the appropriate factors in determining
Hanna’s
credibility.
Hanna’s
assertions
that
Williford
might
have been coerced and motivated by revenge are not supported by
his
own
testimony
or
any
other
evidence
in
the
record.
Accordingly, we discern no prejudice arising from Williford’s
absence.
3.
Finally,
Hanna
argues
that
the
IJ
erred
in
denying
his
motion in limine, pursuant to which he sought to offer evidence
intended
to
attack
the
government’s
motive
in
seeking
his
removal. Specifically, Hanna argues that he would have shown
that the DHS targeted him for removal under the mistaken belief
that he was a terrorist. We discern no error.
The
exclusion
of
Hanna’s
proposed
evidence
is
governed
under the same standard as the failure to compel Williford to
testify: Hanna must show that the challenged defect (1) made the
proceeding fundamentally unfair and (2) prejudiced the outcome
of the case. Anim, 535 F.3d at 256. Inherent under the first
prong
is
whether
“the
evidence
is
probative.”
Id.
(quoting
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003)).
Hanna’s argument here fails mainly because he does not show
how evidence of the government’s motive would be relevant to
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determining
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whether
he
was
Pg: 24 of 25
removable
on
the
ground
that
he
employed a fraudulent marriage in order to obtain an immigration
benefit.
The
evidence,
DHS
that
needed
Hanna
to
was
show,
by
removable
clear
as
and
convincing
charged.
8
C.F.R.
§ 1240.8(a). Once that burden was met, Hanna had “the burden of
establishing that he . . . [was] eligible for any requested
benefit
exercise
or
of
privilege
and
discretion.”
that
it
should
be
Id.
§ 1240.8(d).
granted
The
in
the
government’s
motive has no bearing on Hanna’s removability, nor does Hanna
assert any benefit or privilege that he would be entitled to
based on any malicious intent by the DHS to selectively pursue
removal against him. See Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 488 (1999) (“As a general matter . . . an
alien unlawfully in this country has no constitutional right to
assert
selective
enforcement
as
a
defense
against
his
deportation.”). Indeed, the Supreme Court has cautioned against
questioning
the
motive
of
the
government
in
enforcing
immigration laws. See id. at 491 (“The Executive should not have
to
disclose
its
‘real’
reasons
for
deeming
nationals
of
a
particular country a special threat . . . and even if it did
disclose them a court would be ill equipped to determine their
authenticity and utterly unable to assess their adequacy.”).
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In short, there was neither legal error nor an abuse of
discretion
in
the
IJ’s
exclusion
of
motive
evidence
in
this
case.
III.
For the reasons set forth, the petition for review is
DENIED.
25
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