Filed: Jul. 14, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0249p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SARAI MARTINEZ KING, - Petitioner, - - No. 08-4357 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, N On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A74 742 863. Submitted: June 11, 2009 * Decided and Filed: June 29, 2009 ** Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge. _ COUNS
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0249p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SARAI MARTINEZ KING, - Petitioner, - - No. 08-4357 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, N On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A74 742 863. Submitted: June 11, 2009 * Decided and Filed: June 29, 2009 ** Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge. _ COUNSE..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0249p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
SARAI MARTINEZ KING,
-
Petitioner,
-
-
No. 08-4357
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR., Attorney General,
N
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A74 742 863.
Submitted: June 11, 2009
*
Decided and Filed: June 29, 2009
**
Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.
_________________
COUNSEL
ON BRIEF: Michael E. Piston, PISTON & CARPENTER, P.C., Troy, Michigan, for
Petitioner. Patrick James Glen, U.S. DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Petitioner Sarai Martinez King, a native and citizen of
Mexico, seeks review of a decision of the Board of Immigration Appeals (“BIA” or
“Board”) affirming an immigration judge’s (“IJ”) order that she be removed and
*
This decision was originally issued as an “unpublished decision” filed on June 29, 2009. On
July 10, 2009, the court designated the opinion as one recommended for full-text publication.
**
The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio, sitting
by designation.
1
No. 08-4357 King v. Holder Page 2
deported to Mexico. Because sufficient evidence supports the IJ’s ruling that petitioner
entered into a fraudulent marriage for the purpose of gaining lawful admission to the
United States, we deny her petition for review.
I.
In 1993, petitioner entered the United States on a tourist visa. She remained in
the country after the temporary visa expired and married Jeffrey King, a United States
citizen, in December 1995. Because of the marriage, petitioner was granted permanent
resident status on a conditional basis in June 1996. See 8 U.S.C. § 1186a. The
conditions were removed in October 1998. See 8 U.S.C. § 1186a(c); Almario v. Attorney
General, 872 F.2d 147 (6th Cir. 1989).1 Eight months later, Jeffrey King filed a
complaint for divorce, and the couple was divorced in September 1999.
In July 2002 and December 2005, the former Immigration and Naturalization
Service (now the Department of Homeland Security) initiated removal proceedings
against petitioner, charging her with fraudulently entering into a marriage for the
purpose of procuring admission as an immigrant and willfully misrepresenting in her
petition to remove conditions that she and Jeffrey King lived together as husband and
wife. See 8 U.S.C. § 1227(a)(1)(A) & (a)(1)(G)(ii); § 1182(a)(6)(C)(i). In October
2006, following an evidentiary hearing, the IJ entered a written opinion sustaining all
charges and finding that “this marriage was a sham from inception” and that “[t]he
parties married for the sole purpose of permitting [petitioner] to remain lawfully in the
United States.” The IJ ordered that petitioner be removed and deported to Mexico. In
September 2008, the BIA affirmed, without opinion, the IJ’s ruling. On November 24,
2008, we denied her request for a stay of removal.
1
In Almario, we explained conditional status and removal of conditions as follows:
In enacting the [Immigration Marriage Fraud Amendments of 1986], Congress sought
to limit the potential abuse of “immediate relative” status by postponing the receipt of
the many benefits afforded an alien married to a citizen . . . . [A]n alien spouse is only
entitled to a two year conditional status as a lawful permanent resident. At the end of
the two year probationary period, the condition is removed . . . so long as the marriage
is bona fide and has not been terminated.
872 F.2d at 149.
No. 08-4357 King v. Holder Page 3
Sarai Martinez King timely petitions for review.
II.
A.
When the BIA affirms the IJ’s decision without an opinion, as it did here, we
review the IJ’s ruling directly. Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir. 2008).
The order is valid only if “it is based upon reasonable, substantial, and probative
evidence.” 8 U.S.C. § 1229a(c)(3)(A). The IJ’s “findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B);
Huang, 523 F.3d at 649. “Under this deferential standard, we may not
reverse the Board’s determination simply because we would have decided the matter
differently.” Koliada v. INS,
259 F.3d 482, 486 (6th Cir. 2001).
The deferential “substantial evidence” standard also applies to the IJ’s
determinations about witness credibility. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.
2004). In other words, “[w]e cannot reverse the IJ’s credibility determination . . . unless
the evidence compels a different conclusion.” Ndrecaj v. Mukasey,
522 F.3d 667, 675
(6th Cir. 2008) (emphasis added). In assessing a witness’s credibility in a removal
proceeding, the IJ, by statute, may consider “all relevant factors.” 8 U.S.C.
§ 1229a(c)(4)(C).2 “[H]owever, if no adverse credibility determination is explicitly
made, the applicant or witness shall have a rebuttable presumption of credibility on
appeal.”
Id.
2
8 U.S.C. § 1229a(c)(4)(C) provides:
Considering the totality of the circumstances, and all relevant factors, the immigration
judge may base a credibility determination on the demeanor, candor, or responsiveness
of the applicant or witness, the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal consistency of each
such statement, the consistency of such statements with other evidence of record
(including the reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any
other relevant factor. . . .
No. 08-4357 King v. Holder Page 4
In a removal proceeding for a previously admitted alien, the Department of
Homeland Security bears the burden of establishing that the alien is deportable by “clear
and convincing” evidence. 8 U.S.C. § 1229a(c)(3)(A).3 An alien is deportable if she
committed “[m]arriage fraud,” which includes “fail[ing] or refus[ing] to fulfill the alien’s
marital agreement which in the opinion of the Attorney General was made for the
purpose of procuring the alien’s admission as an immigrant.” 8 U.S.C.
§ 1227(a)(1)(G)(ii).
A “marriage was a sham if the bride and groom did not intend to establish a life
together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.
1975); Acheampong v. Keisler, 250 F. App’x 158, 161 (6th Cir. 2007) (unpublished).
The parties’ intent may be assessed by circumstantial evidence about the amount of
commitment to the marital relationship, including whether assets and liabilities were
combined, the duration of cohabitation, whether children were born to the marriage, and
other pertinent evidence. 8 C.F.R. § 216.5(e)(2)(i)-(iv);
Bark, 511 F.2d at 1202;
Acheampong, 250 F. App’x at 161.
B.
Although petitioner separates her petition for review into several issues, they can
be reduced to a single question: Does substantial evidence support the IJ’s ruling that
petitioner entered into a fraudulent marriage for the purpose of permitting her to remain
lawfully in the United States? The evidence overwhelmingly supports the IJ’s decision
that she did.
Jeffrey King is homosexual and testified that he married petitioner as a favor to
his “very good friend[,]” Judi Haynes. Haynes, who is paraplegic and blind, employed
petitioner’s mother as her caregiver. Jeffrey explained that he married petitioner because
3
In her first issue raised in this appeal, petitioner argues that the applicable evidentiary standard
was “clear, unequivocal, and convincing” and that the IJ erred in applying a “clear and convincing”
standard. However, petitioner ignores a 1996 statutory amendment to the Immigration and Nationality Act
that eliminated the word “unequivocal” from the standard, and she erroneously relies upon two post-1996
cases from this court that apparently conflated, albeit inadvertently, both standards. See Pickering v.
Gonzales, 465 F.3d 263, 269 n.3 (6th Cir. 2006) (“[T]he current standard is ‘clear and convincing
evidence.’”) (citing 8 U.S.C. § 1229a(c)(3) and 8 C.F.R. § 1240.8(a)).
No. 08-4357 King v. Holder Page 5
he believed that the marriage would allow her to become a citizen and “sponsor” her
mother to obtain citizenship as well. In this way, petitioner’s mother, whom Jeffrey
characterized as a “wonderful caregiver,” could remain in the United States and continue
caring for his friend.
Jeffrey testified that he and petitioner had no discussions about living a life
together and did not consummate the marriage, cohabitate, or jointly own property or
accounts, although they were friendly and socialized frequently. He explained that the
marriage was for legal purposes only and that on their wedding date, the couple executed
an antenuptial agreement relinquishing all rights to the other’s property. According to
Jeffrey, he has lived with David King, whom he describes as his “life partner,” since
1997 (when Jeffrey and petitioner were still married and more than a year before
petitioner claims she moved out of his home permanently). Jeffrey has three adopted
daughters, the first of whom was born in 1997, and he explained that he identified
himself as “unmarried” on her adoption application because “[i]n my mind . . . I was a
single person.” When asked on cross-examination why he should be believed after
having entered into an admittedly fraudulent marriage and having made false statements
previously, Jeffrey responded that he thought he was doing a “good thing” by “trying to
help somebody.”
David King corroborated Jeffrey’s testimony, lending further support to the IJ’s
ruling. David testified that he is homosexual, has had a monogamous sexual relationship
with Jeffrey since August 1996, and considers their relationship akin to a marriage.
When David met Jeffrey in 1996, Jeffrey was the sole occupant of his home, and David
moved into Jeffrey’s home in August 1997. In 1998, David legally changed his last
name to “King.” David has credit cards in Jeffrey’s name, medical insurance through
Jeffrey’s work, and shares a savings account with Jeffrey. David is a stay-at-home
caregiver for the couple’s three adopted daughters. He testified that their first daughter
was born in August 1997, and that the process to adopt her, which included home studies
by the adoption agency, began in early 1997.
No. 08-4357 King v. Holder Page 6
David was aware of the marriage between Jeffrey and petitioner and testified that
Jeffrey told him that he married her as a favor to Haynes, whom David characterized as
Jeffrey’s “best friend.” When confronted with a July 1998 letter he wrote vouching for
the validity of the marriage between Jeffrey and petitioner, David admitted that the letter
was untruthful and explained that he wrote it because he loved Jeffrey and thought he
was doing the “right thing” by helping petitioner obtain citizenship.
The testimony of Special Agent Bernadette Cundiff of the fraud unit of the U.S.
Immigration and Customs Enforcement independently confirmed Jeffrey’s and David’s
testimony, thereby providing additional support for the IJ’s ruling that the marriage was
fraudulent. Cundiff was tasked with determining the validity of the marriage. During
her investigation, Cundiff discovered that both petitioner and David simultaneously
listed Jeffrey’s home as their addresses but found that petitioner resided at other
locations as well. When Cundiff interviewed Jeffrey’s next door neighbor who had
previously attested to the validity of the marriage, the neighbor conceded that she did not
recognize Sarai Martinez King’s name (although she was familiar with her face because
she met Sarai Martinez King at a birthday party for Jeffrey’s daughter). The neighbor
also confirmed that Jeffrey was homosexual and lived with David.
Cundiff interviewed Jeffrey and David. David informed Cundiff that he neither
resided at the address he listed in his previous letter on behalf of Jeffrey and petitioner,
nor was he “just a neighbor” of Jeffrey’s as he initially claimed. Jeffrey’s story to
Cundiff about why he married petitioner was consistent with his testimony to the IJ.
Based on her investigation, Cundiff concluded that the marriage was not viable.
The primary basis for Sarai Martinez King’s petition is that she was blinded by
love. She asserts and so testified that she married Jeffrey because she loved him, and she
thought Jeffrey loved her too. According to petitioner, she met Jeffrey at a Christmas
party, dated him for several months, and was sexually intimate with him. “[H]e was like
a God to me,” she explained. Petitioner contends that Jeffrey’s (and David’s) testimony
to the contrary should not be believed because it was inconsistent with their prior
No. 08-4357 King v. Holder Page 7
statements during the immigration and adoption processes and with the documentary
evidence.
However, petitioner’s “once a liar, always a liar” argument merely begs the
question because the charge levied against her was fraud, more specifically marriage
fraud, which requires at least two people allegedly engaging in a dishonest act. Because
petitioner’s story and that of all other witnesses are polar opposites, one by default is
untrue.
We conclude that the IJ skillfully ferreted fact from fiction. She prudently
acknowledged that petitioner’s opposing witnesses, Jeffrey and David, made false
statements in the past. In particular, she noted that Jeffrey and David admitted that they
previously vouched untruthfully for the validity of the marriage. Nevertheless, the IJ
determined that their testimony was credible, basing her finding on several key
discrepancies.
Most prominent was petitioner’s testimony that she had “no idea” Jeffrey adopted
a child while she purportedly was living in his home as his wife. While petitioner agreed
that she was aware of the child’s presence in the home, she testified that she never asked
her husband about the child. The IJ’s characterization of petitioner’s testimony as
“disingenuous” and “implausible” was accurate. Indeed, it would be extraordinary for
a spouse not only to be unaware that her husband has adopted a newborn (particularly
in light of the home studies that were conducted by the adoption agency in the months
prior), but also to make no inquiry about a child who is living and being cared for by her
husband in her own home.
In addition, the IJ observed that petitioner’s representation that she resided with
Jeffrey in his home continuously (with the exception of a one-month gap) from August
1997 until November 1998 contradicted the complaint for divorce, which alleged that
the couple ceased cohabiting as marital partners in June 1997. Although petitioner
attributes that finding to a typographical error in the divorce complaint, she provides no
rational explanation for her alleged naïveté concerning her husband’s simultaneous
romantic relationship and cohabitation with David. In fact, petitioner all but conceded
No. 08-4357 King v. Holder Page 8
her case when she testified that she was aware David moved in but thought he was “just
a friend.” Further, the IJ found it significant that the couple shared no assets or
liabilities. Petitioner’s testimony that she and Jeffrey owned no property together, held
no joint bank accounts (checking or savings) or credit cards, had separate medical
insurance, and shared no financial obligations supports that finding.
Finally, the IJ credited David’s and Jeffrey’s testimony, finding that David
realized the criminal nature of his prior misrepresentations and that Jeffrey contacted the
State of Michigan to insure that his prior false statements would not negatively impact
his daughters’ adoptions. The consistent explanations provided by David and Jeffrey for
their initial deceptions and later recantations, as well as their desire to help their disabled
friend, supports the IJ’s finding that they told the truth.
The evidence of record does not compel a contrary conclusion. Petitioner offered
no witnesses to corroborate her testimony. Although she contends that her credibility
must be presumed because the IJ failed to make an express finding to the contrary, that
argument is factually inaccurate and, in fact, frivolous. The IJ characterized petitioner’s
testimony unambiguously as “disingenuous,” “implausible,” and “not persuasive.” In
denying petitioner’s request for voluntary departure, the IJ stated: “[Petitioner’s]
testimony in this case not only lacked credibility, but was completely implausible.
Indeed, the Court would find that [petitioner] did not testify truthfully concerning her
residence and the relationship between herself and Jeffrey King.” Compare Ndrecaj,
522 F.3d at 671, 674-75 (an immigration judge’s statement that “the respondent has not
demonstrated to be a credible person” constituted an adverse credibility determination).
Even in the absence of this adverse credibility determination, the IJ certainly was not
compelled to believe petitioner’s implausible account based on her solitary testimony.
III.
Petitioner’s removability was established by clear and convincing evidence,
sufficient evidence supports the IJ’s ruling that petitioner entered into a fraudulent
marriage for the purpose of gaining lawful admission into the United States, and the
No. 08-4357 King v. Holder Page 9
record does not compel a contrary conclusion.4 For these reasons, we deny her petition
for review.
4
The second and third issues raised in petitioner’s appellate brief – that she did not enter the
United States following a misrepresentation and that any misrepresentation she made about her residence
on the form I-751 was not material – relate to the charge alleging that petitioner “willfully misrepresent[ed]
a material fact” under 8 U.S.C. § 1182(a)(6)(C)(i). However, these issues were neither raised nor
considered on their merits in petitioner’s appeal to the BIA. Therefore, we lack jurisdiction to consider
them. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.”); Sterkaj v. Gonzales, 439 F.3d
273, 279 (6th Cir. 2006) (holding that we lack jurisdiction to consider all claims not “properly presented
to the BIA and considered on their merits . . . .”) (quoting Ramani v. Ashcroft,
378 F.3d 554, 559 (6th Cir.
2004)). Even if we could consider them, the outcome would be unaltered because the IJ’s ruling on the
remaining charge – marriage fraud – renders petitioner deportable. 8 U.S.C. § 1227(a)(1)(G)(ii).
