United States 9th Circuit Court of Appeals Reports

Unpublished

HUSSIEN v. GONZALES, 05-72232 (9th Cir. 1-4-2007)
MOHAMEDHABIB AHMEDIN HUSSIEN, Petitioner, v. ALBERTO R.
GONZALES, Attorney General, Respondent. Nos. 05-72232,
05-71255, Agency No. A45-676-300. United States Court of
Appeals, Ninth Circuit. Argued and Submitted October 19,
2006. Seattle, Washington. January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM[fn*]

[fn*] This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R.
36-3.

On Petition for Review of an Order of the Board of
Immigration Appeals.

Before: D.W. NELSON, PAEZ, and SMITH, Circuit Judges.

Mohamedhabib Ahmedin Hussien petitions for review of two
decisions of the Board of Immigration Appeals (BIA): one
denying his direct appeal from the entry of an in absentia
order of removal, and one affirming the denial of his
motion to reopen and rescind. Because we agree with the BIA
that it lacked jurisdiction over Petitioner’s direct appeal
from the entry of the in absentia order of removal, we deny
the first petition, No. 05-72232. We grant the second
petition, No. 05-71255, however, because the agency did not
sustain its burden of proving that the petitioner was
removable.

Mr. Hussien, who had previously been married and divorced
under Sharia religious law, entered into a civil marriage
with Semira Hussien, a U.S. citizen, in Ethiopia and then
emigrated with his new wife to the United States. In the
petition for an immigrant visa that he filed with the U.S.
consulate in Ethiopia, he failed to disclose his prior
religious marriage and divorce. In 2000, the petitioner and
his wife filed a visa petition to bring the petitioner’s
three children to the United States and for the first time
disclosed information concerning his previous marriage.
Before the Department of Homeland Security (DHS) had issued
a decision on the visa petition, the petitioner also filed
a petition to naturalize.[fn1]

In May 2001, the DHS denied the visa application for his
children on the ground that the petitioner’s Sharia divorce
was invalid. One year later, it denied the petitioner’s
application for naturalization on the ground that he had
committed fraud by failing to disclose his previous
marriage and divorce. The DHS then initiated removal
proceedings.

During the petitioner’s removal proceedings, the IJ heard
testimony on the law and customs of marriage and divorce in
Ethiopia. The IJ determined that the petitioner’s first
marriage had lawfully ended in accordance with Islamic law,
declined to find fraud or material misrepresentation in his
visa application, and terminated the removal proceedings.

The DHS appealed the IJ’s decision to the BIA. The BIA
found that the petitioner’s failure to disclose information
about his previous marriage was a willful
misrepresentation. The BIA determined that the petitioner
was inadmissible and removable under 8 U.S.C.
§§ 1182(a)(6)(C)(i) and 1227(a)(1)(A).
Specifically, the BIA concluded that the petitioner’s
misrepresentations were material because he had not obtained
a valid divorce from his wife at the time that he married
his second wife, and that the lack of a valid divorce, if
disclosed, would have prevented the petitioner from
obtaining a visa based upon his marriage to his second
wife. The BIA remanded the matter to the IJ for further
proceedings.

When the petitioner failed to appear at scheduled court
hearing, the IJ ordered him removed in absentia. The IJ
denied the petitioner’s motion to reopen the in absentia
removal order. Following the petitioner’s appeal, the BIA
affirmed the IJ’s denial of his motion to reopen. The
petitioner filed a timely petition for review of the BIA’s
decision on April 18, 2005. We have jurisdiction pursuant
to 8 U.S.C. § 1252.

Title 8, U.S.C. § 1229a(b)(5)(D) limits the scope of
our judicial review of an in absentia removal order to “(i)
the validity of the notice provided to the alien, (ii) the
reasons for the alien’s not attending the proceeding, and
(iii) whether or not the alien is removable.” We review the
BIA’s factual determinations underlying a determination of
removability for substantial evidence. See Damon v.
Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). In order to
remove an alien in absentia, the DHS must “establish[] by
clear, unequivocal, and convincing evidence that . . . the
alien is removable.” See 8 U.S.C. § 1229a(b)(5)(A).

Based on the record before us, we are not convinced that
the DHS proved by clear, unequivocal and convincing
evidence that the petitioner was inadmissible under
§ 1182(a)(6)(C)(i) for willfully misrepresenting a
material fact or that he was therefore deportable under
§ 1227(a)(1)(A). Moreover, the DHS failed to
establish by clear, unequivocal and convincing evidence
that the petitioner was still married to his first wife
when he married his second wife — a United States
citizen — or that the petitioner had willfully
misrepresented his marital history. See 8 U.S.C. §
1229a(b)(5)(A).

Because the DHS failed to establish by clear, unequivocal
and convincing evidence that the petitioner was
inadmissible for fraud and thus was removable, we grant the
petitioner’s second petition for review and vacate the
order of removal. See Khodagholian v. Ashcroft, 335 F.3d
1003, 1009 (9th Cir. 2003).

No. 05-72232 — PETITION DENIED. No. 05-71255
— PETITION GRANTED. ORDER OF REMOVAL VACATED.

[fn1] The Immigration and Naturalization Service (INS) was
abolished and its functions transferred to the Department
of Homeland Security. See Homeland Security Act of 2002,
Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205
(2002), 6 U.S.C. § 291. For purposes of consistency,
we will refer to the DHS in this memorandum even though the
INS was still intact when the petitioner emigrated to the
United States.