Felicia Zeah v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: Kermit E. Bye, Lavenski R. Smith and Duane Benton AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [4130313] [12-3653]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3653
___________________________
Felicia Zeah
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 23, 2013
Filed: March 6, 2014
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Before BYE, SMITH, and BENTON, Circuit Judges.
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BYE, Circuit Judge.
Felicia Zeah petitions for review of an order of the Board of Immigration
Appeals (BIA), which affirmed the denial of Zeah's application for cancellation of
removal. Zeah argues the Immigration Judge (IJ) and the BIA applied incorrect legal
standards and violated her constitutional rights in handling testimony and in

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determining Zeah had not established removal would result in exceptional and
extremely unusual hardship to her minor child. We deny Zeah's petition.
I
Zeah, a citizen and national of Nigeria, came to the United States in 1985 to
join her first husband. Zeah has two adult children from her first marriage. Zeah
divorced her first husband and subsequently married her second husband, United
States citizen James Wells, in 1989. The IJ found this was a sham marriage.
Zeah married her third and current husband, United States citizen Wilson Zeah,
in 1999. Zeah and Wilson have a minor son together, J.R., who was born in 2000.
J.R. has a learning disability as well as other social problems. Wilson filed a relative
petition for Zeah which was denied pursuant to 8 U.S.C. § 1154(c) based on Zeah's
alleged prior sham marriage.
In 2008, the Department of Homeland Security commenced removal
proceedings against Zeah, contending she was removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) as an immigrant, who, at time of application for admission, is
not in possession of a valid entry document. Zeah conceded removeability, but
sought cancellation of removal under 8 U.S.C. § 1229b(b)(1). The IJ heard two days
of testimony, including that of Zeah, her husband, her adult son, and Dr. Ajovi B.
Scott-Emuakpor ("Dr. Scott"). Zeah, her husband, and her adult son all testified
about the family unit and Zeah's role as J.R.'s primary caretaker. The IJ refused to
hear the testimony of J.R., who was then nine years of age, but allowed Zeah to make
an offer of proof. J.R. would have testified to his mother being his caretaker. Zeah
then sought to admit testimony from her adult daughter Kafayat. The IJ rejected the
testimony because it would have been cumulative with the testimony of other family
members. The IJ accepted an offer of proof regarding Kafayat's proposed testimony.

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Zeah also offered testimony from Dr. Scott, her expert. Dr. Scott is a professor
of pediatric medicine and is originally from Nigeria, which he regularly visits to work
at a teaching hospital. Zeah sought to offer Dr. Scott as an expert in pediatric
medicine, children who suffer from learning disabilities, the treatment of learning
disabilities, treatment available in Nigeria, treatment available in the United States,
and the importance of a primary caretaker. The IJ accepted Dr. Scott's testimony on
pediatrics as expert testimony, and heard fact testimony from Dr. Scott on J.R.'s
specific learning disability and conditions in Nigeria.
The IJ denied Zeah's application for cancellation of removal, determining Zeah
failed to prove a family member would suffer exceptional or extremely unusual
hardship if Zeah were removed. Specifically, the IJ believed the harm to J.R. upon
Zeah's removal is suffered by the majority of children who have a parent removed.
Alternatively, the IJ held it would deny Zeah's application as a matter of discretion
because the record held substantial evidence of a prior sham marriage to Wells.
The BIA affirmed the IJ and dismissed Zeah's appeal. The BIA determined
Zeah failed to prove a family member would suffer exceptional or extremely unusual
hardship. The BIA found no error in excluding testimony from J.R. and found even
if the IJ had erred in excluding expert testimony, Zeah was not prejudiced as
testimony about conditions in Nigeria were irrelevant as J.R. would stay in the United
States. The BIA did not address the IJ's alternative discretionary reason for denying
relief based on the sham marriage.
II
Zeah now petitions for review of the BIA's denial of her application for
withholding of removal. The United States filed a motion to dismiss for lack of
subject matter jurisdiction.

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Because the BIA's decision is the final decision of an agency, it is the subject
of our review. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005) (citing Ismail
v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005)). "In an appeal from the BIA, we
review the BIA's fact-findings for substantial evidence, and we review its legal
determinations, as well as any constitutional challenges, de novo." Banat v. Holder,
557 F.3d 886, 889 (8th Cir. 2009) (citing Ntangsi v. Gonzales, 475 F.3d 1007, 101112 (8th Cir. 2007)). In order to reverse under the substantial evidence standard, there
must be evidence "so compelling that no reasonable fact-finder would fail to find for"
Zeah. Nadeem v. Holder, 599 F.3d 869, 872 (8th Cir. 2010). Where, as here, the BIA
adopts the IJ's reasoning, we also review the IJ's decision. Banat, 557 F.3d at 889-90
(citing Bhosale v. Mukasey, 549 F.3d 732, 735 (8th Cir. 2008)).
Zeah acknowledges her removeability under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
(allowing removal for an immigrant, who, at time of application for admission, is not
in possession of a valid entry document). However, Zeah seeks cancellation of
removal under 8 U.S.C. § 1229b(b)(1) which allows for cancellation of removal and
adjustment of status if the alien (1) has been present in the United States for ten years;
(2) has been a person of good moral character during that period; (3) has not been
convicted of certain crimes; and (4) "establishes that removal would result in
exceptional and extremely unusual hardship" for a spouse, parent, or child. 8 U.S.C.
§ 1229b(b)(1).
A
As a threshold issue, the government argues we should dismiss Zeah's petition
for lack of jurisdiction. The decision to grant cancellation of removal is a
discretionary act by the Attorney General which this Court may not review. 8 U.S.C.
§ 1252(a)(2)(B); Gomez–Perez v. Holder, 569 F.3d 370, 372 (8th Cir. 2009).
However, we retain jurisdiction to review constitutional claims or questions of law.
8 U.S.C. § 1252(a)(2)(D); Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008). We
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also possess jurisdiction to "review the nondiscretionary determinations underlying
a denial of an application for cancellation of removal, 'such as the predicate legal
question whether the IJ properly applied the law to the facts in determining an
individual's eligibility.'" Pinos–Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir.
2008) (quoting Guled, 515 F.3d at 880). We have cautioned "that a petitioner may
not create jurisdiction by cloaking an abuse of discretion argument in constitutional
or legal garb." Garcia–Torres v. Holder, 660 F.3d 333, 338 (8th Cir. 2011) (internal
quotation marks omitted).
Zeah alleges three errors regarding admission of testimony and an additional
error related to application of incorrect legal standards. The United States contends
Zeah is seeking to evade the prohibition against appellate review of this discretionary
decision by recasting her arguments as presenting issues of law. Zeah, however,
makes claims, which, while ultimately unpersuasive, allow us to review the petition
inasmuch as constitutional and legal issues are raised.
B
Zeah argues the IJ erred in failing to qualify Dr. Scott as an expert witness and
erred in failing to hear the testimony of Zeah's minor son and adult daughter.
"IJs maintain an affirmative duty to develop the record." Constanza-Martinez
v. Holder, 739 F.3d 1100, 1102 (8th Cir. 2014). Thus, "'unlike an Article III judge,
[an IJ] is not merely the fact finder and adjudicator but also has an obligation to
establish the record.'" Id. (alteration in original) (quoting Al Khouri v. Ashcroft, 362
F.3d 461, 465 (8th Cir. 2004) ("[U]nlike the trial judge, an administrative judge has
a well established affirmative duty to develop the record.")). "The traditional rules
of evidence do not apply in immigration proceedings, except to the extent due process
is implicated." Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009). "[F]airness
rather than the rules of evidence govern the admissibility of evidence[.]" Tun v.
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Gonzales, 485 F.3d 1014, 1028 (8th Cir. 2007). To demonstrate her due process
rights were violated, Zeah "must demonstrate both a fundamental procedural error
and that the error resulted in prejudice." Lopez v. Hienauer, 332 F.3d 507, 512 (8th
Cir. 2003). Prejudice "requires a showing that the outcome of the proceeding may
well have been different had there not been any procedural irregularities." Tun, 475
F.3d at 1026.
Zeah argues the BIA erred in affirming the IJ's rulings regarding testimony
from Dr. Scott, J.R., and Zeah's adult daughter Kafayat. The IJ did not commit
procedural error in excluding in-whole the testimony of J.R. and Kafayat. J.R. and
Kafayat were to testify about their home-life as well as Zeah being the primary
caregiver for J.R. In addition, J.R. would have testified regarding how much he
would miss his mother upon removal. This evidence had already been admitted
through the credible testimony of Zeah, her husband, and her adult son. When there
has already been credible testimony, there is no due process violation when an IJ
refuses to admit cumulative and unnecessary evidence. Kinfe v. Ashcroft, 121 F.
App'x 675, 679 (8th Cir. 2005).
Regarding Dr. Scott, we need not consider whether, as Zeah contends, the IJ
erred in not qualifying more of Dr. Scott's testimony as expert testimony because
Zeah is unable to show prejudice. See Agha v. Holder, __ F.3d __, 2014 WL 627572,
at *7 (8th Cir. Feb. 19, 2014) (noting petitioner must show procedural error and
prejudice). Federal Rule of Evidence 702 (allowing "[a] witness who is qualified as
an expert by knowledge, skill, experience, training, or education [to] testify in the
form of an opinion") is not binding before an IJ, but can inform whether an IJ should
have allowed expert testimony. See Tun, 485 F.3d at 1027. The BIA affirmed the IJ
on the ground that the proffered testimony would not have shown exceptional and
extremely unusual hardship to J.R. We cannot disturb the BIA's ruling because the
proffered evidence is not "so compelling that no reasonable fact-finder could fail to

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find for" Zeah had the testimony been admitted as expert testimony. Agha, 2014 WL
627572, at *3.
C
Finally, Zeah argues the IJ erred by applying an incorrect legal standard in
determining her petition was undeserving of a favorable grant of discretion and the
BIA erred by declining to review this error. After finding Zeah ineligible for
cancellation of removal under 8 U.S.C. § 1229b, the IJ held it would additionally
exercise its discretion to deny Zeah relief based on her prior sham marriage to James
Wells. The BIA did not reach this ground. While "we can review directly the
decision of the IJ," Ngure v. Ashcroft, 367 F.3d 975, 981 (8th Cir. 2004), we need not
do so in this scenario because we lack jurisdiction to review this discretionary
decision. Zeah does not make a constitutional or legal claim, but takes offense with
the way the IJ weighed the relevant factors. Zeah attempts to "create jurisdiction by
cloaking an abuse of discretion argument in constitutional or legal garb,"
Garcia–Torres, 660 F.3d at 338, but we do not have jurisdiction to review this claim.
III
Accordingly, we deny Zeah's petition for review.
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