United States 8th Circuit Court of Appeals Reports

EBRAHIM v. GONZALES, 05-4433 (8th Cir. 12-22-2006) Yasser
Ebrahim, Petitioner, v. Alberto Gonzales, Attorney General
of the United States of America, Respondent. No. 05-4433.
United States Court of Appeals, Eighth Circuit. Submitted:
October 20, 2006. Filed: December 22, 2006.

Petition for Review of a Final Decision of the Board of
Immigration Appeals.

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Yasser Ebrahim, a native and citizen of Egypt, entered the
United States as a non-immigrant visitor for pleasure.
Ebrahim married a United States citizen and his
non-immigrant status was subsequently adjusted to that of a
conditional permanent resident. Thereafter, he filed a
purported “joint” petition requesting removal of the
conditional basis of his residence. The Immigration and
Naturalization Service (INS) [fn1] denied the joint
petition and terminated his conditional residence status.
Ebrahim later divorced his wife and withdrew the joint
petition, acknowledging that the joint petition contained
the forged signature of his ex-wife. He filed a second
petition to remove his conditional status, seeking a waiver
of the joint filing requirement under 8 U.S.C. §
1186(c)(4)(B). Ebrahim claimed that he entered the marriage
in good faith and that he would suffer extreme hardship if
he were removed from the United States. The INS denied the
waiver request and petition, and the immigration judge (IJ)
affirmed the denial. The Board of Immigration Appeals (BIA)
affirmed the IJ’s decision. Ebrahim now petitions for
review. We dismiss the petition for lack of jurisdiction.

I. Background

Ebrahim was admitted to the United States as a
non-immigrant visitor for pleasure on August 20, 1993.
Ebrahim married Tameka Knazze, a United States citizen, in
April 1995; however, they separated after only three months
of marriage. Based on his marriage to Knazze, his
non-immigrant status was adjusted to that of a conditional
permanent resident on September 20, 1995.

On August 18, 1997, Ebrahim filed a joint petition to
remove the conditions on his residence with the INS. The
INS sent a letter to Ebrahim’s counsel indicating its
intent to deny the joint petition. In response, on April
27, 2000, Ebrahim asked to withdraw the joint petition,
noting that his petition was not “accurate” or “entirely
truthful” and that he and his wife had since divorced.[fn2]
The INS, however, denied the joint petition and terminated
Ebrahim’s conditional status on May 24, 2000, concluding
that Ebrahim’s marriage to Knazze was “an effort to
circumvent the immigration laws of the United States.”
Specifically, the INS noted Ebrahim’s forgery of Knazze’s
signature on the petition and on a lease agreement that he
submitted to the INS to demonstrate that he and Knazze
lived together.

Before the INS terminated Ebrahim’s conditional status,
Ebrahim had filed a second petition with the INS on May 8,
2000. He requested a waiver of the joint-filing requirement
for the removal of conditions under § 216(c)(4) of
the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1186a(c)(4)(A), (B),[fn3] based on his “good faith”
marriage to Knazze and on the ground that deportation would
cause him extreme hardship.

Ebrahim, however, was charged with being removable under
§ 237(a)(1)(D)(i) of the INA, 8 U.S.C. §
1227(a)(1)(D)(i), because the INS terminated his
conditional status. The INS filed an additional charge
against Ebrahim under § 237(a)(1)(A) of the INA, 8
U.S.C. § 1227(a)(1)(A), alleging that he attempted to
procure an immigration benefit under the INA by fraud or
willfully misrepresenting a material fact. Ebrahim conceded
at the hearing before the IJ that he was removable because
of the termination of his conditional status but denied
that he was removable for attempting to procure an
immigration benefit by fraud or willfully misrepresenting a
material fact. For relief from removal, Ebrahim renewed his
petition, applied for cancellation of removal, and, in the
alternative, sought voluntary departure.

The IJ found Ebrahim removable as charged and denied his
applications for relief. The IJ concluded that Ebrahim was
removable as an alien who attempted to procure an
immigration benefit by fraud or willful misrepresentation.
With respect to the second petition, the IJ found that INS
properly denied the petition because Ebrahim failed to
establish that he entered into his marriage in good faith.

The IJ’s opinion noted that(1) Ebrahim admitted to forging
Knazze’s signature on the first petition and on the lease
document; (2) Ebrahim applied for and received credit cards
in his name and added Knazze’s name to the cards, without
her knowledge, in an attempt to show that they were
establishing a life together; (3) Ebrahim and Knazze had no
joint assets, possessed no photographs of one another, and
owned no property together; (4) Knazze never deposited
money into the joint bank account and never wrote checks
out of the account; (5) Ebrahim admitted to primarily
keeping his money in a separate bank account; (6) Ebrahim
and Knazze separated after only three months of marriage and
had no contact with one another thereafter; (7) Knazze was
not a credible witness; and (8) Knazze exhibited a pattern
of “marrying men from another culture and filing papers on
their behalf.”

The IJ found that the INS correctly determined that Ebrahim
would not suffer extreme hardship if removed from the
United States. The judge also reiterated concerns about
Knazze’s credibility and also found that Ebrahim was not
credible, as he had fabricated information to gain a
benefit based on forged documents.

Ebrahim appealed to the BIA, arguing that he deserved a
waiver because he entered into his marriage in good faith.
The BIA dismissed the appeal, finding no error in the IJ’s
conclusion that Ebrahim failed to establish his eligibility
for a waiver under § 1186a(c)(4)(B).[fn4] The BIA
found, based on the “questionable credibility of the
respondent, and the paucity of objective documentary
evidence of the sort contemplated by the regulations, that
the preponderance of the evidence does not support the
respondent’s claim that he entered into his marriage for a
purpose other than to secure an immigration benefit.”

II. Discussion

On appeal, Ebrahim argues that the IJ erred by (1) failing
to properly analyze whether Ebrahim and Knazze married with
an intent to establish a life together; (2) reaching an
adverse credibility finding that was contrary to law; and
(3) inappropriately questioning Knazze’s credibility and
intent when she married Ebrahim.

Before reaching the merits of Ebrahim’s argument, however,
we must first address the government’s argument that we are
without jurisdiction to review petitions of the denial of a
waiver under 8 U.S.C. § 1186a(c)(4) because the
question of whether a marriage has been entered into in
“good faith” is a matter within the unreviewable discretion
of the Attorney General.

We recently held that we “lack jurisdiction to review
questions of fact underlying discretionary decisions of the
Attorney General, 8 U.S.C. §§ 1186a(c)(4),
1252(a)(2)(B), and are thus without jurisdiction to review
the denial of the hardship waiver. . . .” Suvorov v.
Gonzales, 441 F.3d 618, 622 (8th Cir. 2006).

In Suvorov, the IJ denied the petitioner’s request for
waiver of the requirement that he and his former spouse
file a joint petition to remove the conditional basis of
his permanent residence status after “determining that [the
petitioner] did not enter into the marriage in good faith.”
Id. at 618. In denying the petition for review, we first
recognized that the REAL ID Act (RIDA) prohibits this court
from reviewing discretionary determinations of the Attorney
General, such as a denial of waiver under §
1186a(c)(4). Id. at 621. We then found that “[w]hether the
qualifying marriage was entered into in good faith by the
alien spouse is a discretionary factual determination of the
IJ.” Id. Finally, we noted that the IJ, in denying the
petitioner’s request for waiver of the joint filing
requirement, “weighed the conflicting testimony and other
evidence,” making an “adverse credibility determination.”
Id. at 622.

Here, the IJ, as in Suvorov, determined that Ebrahim was
not eligible for waiver after finding that Ebrahim and
Knazze were not credible and, therefore, did not enter into
the marriage in good faith. Therefore, following Suvorov,
we lack jurisdiction to review the denial of the waiver.

III. Conclusion

Because we lack jurisdiction, Ebrahim’s petition is
dismissed.

[fn1] The INS was abolished and its functions assumed by the
Department of Homeland Security on March 1, 2003.

[fn2] Ebrahim and Knazze divorced on April 11, 2000.

[fn3] Section 1186a(c)(4) provides, in relevant part:

The Attorney General, in the Attorney General’s
discretion, may remove the conditional basis of the
permanent resident status for an alien who fails to meet
the requirements of paragraph (1) if the alien
demonstrates that —

(A) extreme hardship would result if such alien is
removed,

(B) the qualifying marriage was entered into in good
faith by the alien spouse, but the qualifying marriage has
been terminated (other than through the death of the
spouse) and the alien was not at fault in failing to meet
the requirements of paragraph (1), or

(C) the qualifying marriage was entered into in good
faith by the alien spouse and during the marriage the
alien spouse or child was battered by or was the subject
of extreme cruelty perpetrated by his or her spouse or
citizen or permanent resident parent and the alien was
not at fault in failing to meet the requirements of
paragraph (1).

[fn4] In affirming the IJ, the BIA stated:

In the instant case, the Immigration Judge noted that the
respondent and his wife had separated after only 3 months
of marriage and had almost no contact thereafter.
Furthermore, the Immigration Judge noted the lack of
evidence of any shared property or liabilities. In fact,
the respondent admitted that he fraudulently attempted to
create a paper trail by forging his wife’s signature on
the joint petition and housing lease, and listing her as a
user on his credit card accounts without her knowledge.
Although there is evidence that the two had a joint
checking account, the respondent admits that it was used
very rarely, and his wife never put any money into it or
wrote any checks from it, and that he had his own
separate account (Tr. at 75). The record also reflects
that the respondent lied at the 1999 interview regarding
the amount of time he and his wife had lived together.