Date: 02-28-2017

Case Style: Kamal Ali and Israa Hassan v. United States of America

Case Number: 16-2027

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of New Hamsphire

Plaintiff's Attorney: Nathan Warecki and Bobbie Hantz

Defendant's Attorney: Terry L. Ollila and Emily Gray Rice

Description: 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). 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 Diversity Immigrant Visa program. See 8 U.S.C.
§ 1153(c). When the Immigration and Naturalization Service
("INS")1 requested an original copy of the 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. The interview was postponed two more
times after that. 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. 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. 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 affidavit from Lewis, Ali's former wife, 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 Services Officer Susan 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. See Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA
1966). 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 sought review from the Board of Immigration
Appeals, arguing primarily that substantial evidence did not
support the denial. 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 without offering a pre-decision evidentiary
hearing. This is the only claim presented on appeal.2 On June 7,
2016, the magistrate judge issued an order granting the
government's motion for summary judgment. 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. As to whether the
2 The complaint also alleged (1) that USCIS had
erroneously focused its inquiry on 1997, when Lewis filed her I-
130 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. See Shinseki v. Sanders, 556 U.S. 396,
406–07 (2009). 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. Lewis' credibility as to the 2008
recanting affidavit was 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.

Outcome: We affirm the judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:

Comments: