Hassan v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0130p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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NABIL TAISEER HASSAN and SAWSAN

Petitioners, --
HASSAN,

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No. 09-3243

,
>
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v.

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Respondent. -
ERIC H. HOLDER, JR.,
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N
On Petition for Review from a Final Order
of the Board of Immigration Appeals.
Nos. A045 040 944; A073 407 621.
Submitted: April 23, 2010
Decided and Filed: May 11, 2010
*
Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge.

_________________

COUNSEL
ON BRIEF: Eman H. Jajonie-Daman, JAJONIE DAMON, P.C., Southfield, Michigan,
for Petitioners. Kiley L. Kane, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________

OPINION
_________________

CORNELIA G. KENNEDY, Circuit Judge. Petitioners Nabil and Sawsan
Hassan appeal a Board of Immigration Appeals (“Board” or “BIA”) order affirming an
immigration judge’s finding that Petitioners were removable under 8 U.S.C.
§§ 1227(a)(1)(A) and 1227(a)(3)(D). Petitioners also appeal the Board’s denial of their

*
The Honorable Robert Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

1
No. 09-3243 Hassan v. Holder Page 2

motion to remand the record so that they could apply for a waiver of admissibility.
Finally, Petitioners appeal the Board’s ruling that the immigration judge’s failure to
recuse herself did not amount to a due process violation. For the reasons set forth below,
we AFFIRM in part and REVERSE in part the judgment of the Board of Immigration
Appeals.

FACTUAL/PROCEDURAL BACKGROUND

Petitioner Nabil Hassan is a 48-year-old Muslim man who was born and raised
in Jerusalem, Israel and identifies himself as a Palestinian. Petitioner Sawsan Hassan
(née Wadi) is a 40-year-old Muslim woman who was also born and raised in Jerusalem
and identifies herself as Palestinian. It is undisputed that Nabil and Sawsan are presently
married and have four children, all of whom were born in the United States. What is
primarily at issue in this case is when the Hassans’ marriage took place.

Nabil Hassan was admitted to the United States on March 25, 1995 at New York
City on an F-24 Immigrant Visa, which is reserved for unmarried children of lawful
permanent residents (“LPRs”). Hassan qualified for this visa because his mother was
living in the United States and had LPR status. Sawsan Hassan entered the United
States on the same day as Nabil and was admitted to the country on a Nonimmigrant
Tourist Visa. On April 10, 1995, Nabil and Sawsan had a small wedding ceremony at
a mosque in Michigan and signed documents to certify their marriage. On May 4, 1995,
Nabil filed an I-130 petition on behalf of Sawsan, requesting that her immigration status
be adjusted to LPR on the basis of their marriage. On August 11, 1995, the government
granted that request.

On December 29, 1999, Nabil filed an application for naturalization. Daniel
Wells, then a district adjudications officer for the Immigration and Naturalization
Service,1 was assigned to investigate and adjudicate Nabil’s application. On July 27,
2000, Officer Wells conducted an in-person interview of Nabil Hassan as part of his

1
The Department of Homeland Security has since replaced the Immigration and Naturalization
Service as the government agency handling immigration matters.
No. 09-3243 Hassan v. Holder Page 3

investigation. Based on Nabil’s answers to certain questions during the interview,
Officer Wells became suspicious that Nabil and Sawsan had in fact married sometime
before their 1995 entry in the United States. Based on the interview and the results of
an investigation of the Hassans’ marital status in Jerusalem prior to their entry into the
United States, Nabil’s naturalization application was denied.

On May 23, 2002, the government served Nabil Hassan with a Notice to Appear
(“NTA”), alleging that: 1) he had married Sawsan before entering the United States;
2) the marriage automatically revoked his visa under 8 C.F.R. § 205.1(a)(3)(i)(I); and
3) he was removable under 8 U.S.C. § 1227(a)(1)(A) because he was actually an
inadmissible alien at the time of his entry into the country. Because Sawsan’s
immigration status was based on Nabil’s status, the government also issued an NTA to
Sawsan alleging that she too was removable for lacking a valid immigration visa. The
government later added two other charges of deportability to Nabil’s NTA, including
that he was removable under 8 U.S.C. § 1227(a)(3)(D) as an alien who falsely
represented himself as a U.S. citizen for any purpose or benefit under the Immigration
and Nationality Act (“INA”) or any other federal or state law. This additional charge
was based on an allegation that on March 27, 2001 and May 16, 2001, Nabil falsely
represented himself as a U.S. citizen on a Small Business Administration loan
application form. Petitioners denied the pertinent allegations, including the claim that
they had married prior to their entry in the United States.

I. Merits Hearing and Testimony

At a November 29, 2005 merits hearing, Immigration Judge Marsha K. Nettles
heard the testimony of seven witnesses: 1) Officer Daniel Wells; 2) Imam Mohammed
Mardini; 3) Ismail, Ayoub, and Ibraham Hassan–Nabil’s three brothers; and
4) Petitioners Nabil and Sawsan Hassan. The testimony of these witnesses is
summarized below.
No. 09-3243 Hassan v. Holder Page 4

A. Testimony of Officer Daniel Wells

Daniel Wells testified that he was the immigration officer in charge of
investigating and adjudicating Nabil Hassan’s application for naturalization. During his
initial investigation, he had noted that the Hassans’ first child must have been conceived
prior to their April 10, 1995 wedding in Michigan.2 According to Wells, this was a very
uncommon occurrence among applicants from the Middle East. Suspicious that the
Hassans had actually been married at an earlier date, Officer Wells questioned Nabil
about these suspicions at Nabil’s naturalization interview on July 27, 2000. According
to Wells, Nabil admitted that he and Sawsan had in fact been married before they entered
the United States. Wells then typed up a statement for Nabil to sign that included this
admission. Nabil refused to sign the statement, however, asserting that it was untrue.
Officer Wells then typed up a second statement that did not include the admission, and
which Nabil signed. Officers Wells, however, later made his own notation on this
statement that Nabil’s “story changed.”

Officer Wells testified that he then asked the U.S. Embassy in Israel to conduct
an investigation into whether Nabil and Sawsan had been married in Israel. According
to Wells, an officer at the Embassy eventually provided the results of its investigation
in a letter that it sent to him via facsimile; that letter indicated that the Israeli Ministry
of the Interior had an official record of Petitioners’ marriage that predated their entry
into the United States.3 Based on this confirmation, the age of the Hassans’ first child,
and Nabil’s own statements in the naturalization interview, Officer Wells denied Nabil’s
application and initiated removal proceedings against him and Sawsan.

2
Officer Wells initially testified that he had determined that the baby had been born before the
wedding. However, upon later questioning by the IJ, Wells corrected himself and stated that his belief at
the time was that the child had in fact been conceived before the wedding.
3
See infra at 7-8.
No. 09-3243 Hassan v. Holder Page 5

B. Testimony of Imam Mohammed Mardini

Mohammed Radwan Mardini, a Detroit-area imam who worked for the Michigan
Department of Corrections and the American Muslim Center, testified as an expert
witness regarding Muslim marriage customs. Mardini testified that Islamic marriages
involve four steps, each of which must be completed before a marriage is considered
finalized. The first step is called Al Fatha, and consists of the man and woman’s
families meeting and reading from the Koran. The second step is called Al Khuba,
which is the engagement and includes the man giving the woman a ring. The third step
is called Kateb al Ketab, which involves the parties drafting and signing a marriage
contract, which would include the dowry terms and any other conditions placed on the
marriage. Mardini testified that the father of one of the families is typically given a
copy of the contract, and the contract is also filed with the Sharia court and the civil
records department. The fourth and final step is the marriage celebration and the
consummation of the marriage. This is the most important step in the marriage process
and must be completed before the couple is considered married.4

C. Testimony of Nabil’s Three Brothers

Nabil Hassan’s brothers–Ismail, Ayoub, and Ibraham–all testified at the merits
hearing regarding Nabil and Sawsan’s wedding ceremony in Michigan on April 10, 1995
(which occurred some ten years before the merits hearing) and regarding Nabil and
Sawsan’s living arrangements in Michigan prior to their wedding. Although there were
some inconsistencies among their statements at the hearing, the three brothers generally
testified that Nabil and Sawsan had a small wedding ceremony with family members at
a nearby mosque and a small celebration after the ceremony at the home of Nabil’s
oldest brother. Prior to the wedding, Nabil had resided with that brother, and Sawsan
lived in a different dwelling with another of Nabil’s brothers and his family. Ibraham,
Ayoub, and Ismail all lived in Michigan at the time when Nabil and Sawsan first entered

4
This testimony was also confirmed by uncontested documentary evidence entered into the
record. See infra at 7.
No. 09-3243 Hassan v. Holder Page 6

the United States; consequently, none of the brothers had personal knowledge as to what
steps Nabil and Sawsan had taken in Jerusalem with respect to their marriage process.

D. Testimony of Nabil Hassan

Nabil also testified at the merits hearing. According to Nabil, he and his family
had known Sawsan and her family for years. This connection led Nabil and Sawsan to
become romantically involved some time in early 1994. At the end of 1994, Nabil’s
mother had filed a visa application on his behalf that would authorize his entry into the
United States. In February 1995, Nabil became engaged to Sawsan. Nabil testified that
on February 24, 1995, the families created a written engagement contract, and that a
Sharia agent named Nasra helped the families create the document and then file it with
the appropriate authorities. Nabil claimed that he and Sawsan did not finalize their
marriage in Jerusalem, however. Instead, they waited until April 10, 1995, when they
had their ceremony in the mosque and celebration in Michigan.

With respect to his naturalization interview, Nabil testified that he never told
Officer Wells that he had been married in Jerusalem prior to his entry into the United
States. He claimed instead that Officer Wells had both confused him and threatened
him, yelling that Muslims do not have children out of wedlock, that Nabil and Sawsan
must have been married in Jerusalem, and that Nabil would be deported.

Regarding his SBA loan application forms, Nabil did admit that there were
inaccuracies on the forms and that he had signed them. Nabil claimed, however, that he
did not know that the forms were inaccurate at the time he signed them. He testified that
the forms were actually filled out by his financial advisor, that he did not know if his
citizenship status would affect his loan status, and that he was eligible for the loan
regardless of his status. Indeed, Nabil testified that he had filed two other SBA loan
applications earlier, indicating on each that he was a resident alien. Each of those loans
was approved.5

5
Nabil also testified that he had failed to include his prior misdemeanor conviction on one of the
applications in question. But he explained that he omitted it because he did not think that his
conviction–Second Degree Retail Fraud–was in fact a criminal offense because it was a misdemeanor.
No. 09-3243 Hassan v. Holder Page 7

E. Testimony of Sawsan Hassan

Sawsan Hassan also testified at the merits hearing and essentially corroborated
Nabil’s testimony with regard to the timeline of their marriage process.

F. Documentary Evidence

In addition to the testimony of the aforementioned witnesses, the immigration
judge also received several documents into evidence without objection. One was an
affidavit from an imam in Jerusalem outlining the Muslim marriage process. The
affidavit essentially corroborated the testimony of Imam Mardini and it also affirmed
that a Muslim marriage is not complete until the wedding ceremony, celebration, and
consummation all take place. The affidavit also states that the time lapse between the
completion of the marriage contract and the occurrence of the wedding ceremony and
consummation will vary from couple to couple, and could potentially take years to
complete.

Also admitted into the record was an affidavit from Abdul Jabbar Nasra, a Sharia
court agent in Jerusalem. In the affidavit, Nasra stated that he “concluded” the marriage
contract between Nabil and Sawsan Hassan on February 24, 1995. He indicated that the
identification number for that contract was 3769. He also stated that he did not know
whether or when the couple performed the final steps of their marriage process.

The IJ also admitted into evidence two letters from the United States Embassy
in Israel. The first letter, dated March 4, 2002, is addressed to Officer Wells and is
signed by a “Fraud Prevention Investigator” in the Fraud Prevention Unit of the
Embassy. The relevant portions of the letter are as follows:

We have received your inquiry from February 27th, 2002, requesting that
an investigation on subject [Nabil Hassan]’s previous marriage be
conducted.

This omission was not a basis for any of the government grounds for removal, however, and the
immigration judge did not rely on this omission in any way in her merits opinion in Nabil’s removal
proceedings.
No. 09-3243 Hassan v. Holder Page 8

I contacted the Ministry of Interior in order to verify [sic] previous
marriage. According to their database, Subject was married to Sawsan
Wadi (born on the 4th of June 1969) on the 24th of Febraury 1995 in
Jerusalem. Subject and his wife left Israel on the 25th of March 1995.

Please note that the information received from the Ministry of Interior
should remain confidential. Subject should not know how we obtained
the above information.
A second Embassy letter admitted into evidence is dated November 29, 2005.
This letter is labeled as a “Statement” and is signed by the same Fraud Prevention
Investigator as the first letter, as well as the “Fraud Prevention Manager and Immigrant
Visa Chief” of the Embassy’s Fraud Prevention Unit. The letter states the following:

The Israeli Ministry of the Interior (MOI) informed the Fraud Prevention
Unit that Nabil Hassan holder of the identity number [number provided]
and his wife, Sawsan Hassan (maiden name “Wadi”) holder if [sic] the
identity number [number provided] got married in Jerusalem on February
24, 1995 (marriage certificate number 3769). They used to live in Rasud
Amad, in East Jerusalem.
Our contact at the MOI has in hand a copy of Nabil Hassan’s marriage
certificate. Due to the Israeli privacy act they are unable to provide us
with any documents or written statement concerning the case. Therefore,
we approached the Sharia court in an attempt to obtain a copy of the
marriage certificate. I was told that the procedure of obtaining the
information could take a week. As soon as we receive the copy we will
fax it.

The government attorney assigned to the case did not receive this second letter until after
the record had been closed by the immigration judge. However, the government
successfully petitioned the IJ on January 22, 2007 to reopen the record so that this letter
could be admitted. The IJ granted that request in a January 22, 2007 hearing held for the
purposes of resolving the motion to reopen the record. The government has not stated,
at the January 22 hearing or at any other point, whether it has ever received the copy of
the marriage “certificate” from the Sharia court or the American Embassy. No such
copy was admitted into evidence by either party.
No. 09-3243 Hassan v. Holder Page 9

II. Decision of the Immigration Judge

On April 3, 2007, the immigration judge issued an oral decision finding
Petitioners removable as charged. The IJ first found that the Hassans were removable
under 8 U.S.C. § 1227(a)(1)(A) because they had married prior to their arrival in the
United States. To support her finding, the IJ first relied heavily on the Embassy letters,
which, according to the IJ, showed that Petitioners were in fact married in Jerusalem.
The IJ noted that the documents were hearsay evidence, but that the general rules of
evidence do not apply in the immigration setting and that the documents were
sufficiently reliable. The judge also cited Officer Wells’ conclusion that the Hassans
were married prior to their entry into the United States, as well as the fact that Petitioners
failed to produce the alleged marriage contract and did not adequately explain its
absence. Finally, the judge relied on her conclusion that Petitioners and Nabil’s
brothers were all not credible. The judge noted various discrepancies she saw in their
testimony, as well as Nabil’s alleged admission of prior marriage at the naturalization
interview.

The immigration judge next found that Nabil Hassan was removable under
8 U.S.C. § 1227(a)(3)(D) based on her determination that Nabil falsely represented
himself as a U.S. citizen on his SBA loan application. Based on her prior finding that
Nabil’s testimony was not credible, the judge rejected Nabil’s claim that he did not know
about the mistakes when he signed the application. The IJ also found that, even if the
mistakes were innocent, section 1227(a)(3)(D) does not require a showing of willfulness
or knowledge.

Finally, the IJ denied Petitioners’ request for voluntary departure because
Petitioners did not have valid travel documents. Petitioners traveled to the United States
from Jerusalem under Israeli travel documents but apparently do not have Israeli
passports.
No. 09-3243 Hassan v. Holder Page 10

III. Decision by the Board of Immigration Appeals as to Petitioners’ Appeals

On September 11, 2007, Petitioners filed a timely appeal before the Board of
Immigration Appeals. In addition to appealing the rulings of the IJ, Petitioners also
sought remand on the grounds that: 1) the IJ should have recused herself due to her
former role as a government immigration attorney; and 2) Petitioners were eligible for
waivers of inadmissibility under 8 U.S.C. §§ 1227(a)(1)(H) and 1182(k). On
February 17, 2009, the Board dismissed Petitioners’ appeal, affirmed the findings of the
IJ, and denied Petitioners’ motion to remand. The Board first rejected Petitioners’ claim
that the IJ should have recused herself, finding instead that the record contained no
evidence that the IJ demonstrated any bias or improper conduct. The Board then
affirmed the IJ’s finding that Petitioners were married prior to their entry into the United
States. Reviewing the record de novo, the Board relied first and foremost on the fact that
the “record contains Israeli documents indicating that the respondents were married, not
engaged, on February 24, 1995 . . . .”6 The Board then noted that Petitioners failed to
obtain a copy of the Israeli marriage certificate or “contradict the official record of the
February 24, 1995 marriage.” The Board also relied on the fact that the testimony
provided by Petitioners and their relatives was not credible.

The Board also affirmed the IJ’s determination that Nabil was removable on the
ground that he misrepresented himself as a U.S. citizen on his SBA loan application
forms. Without specifically addressing the issue of whether Nabil made this
representation knowingly or willfully, the Board concluded that he “provided the
information and signed the form.” The Board also noted that the relevant immigration
statute “does not contain the requirement that the misrepresentation be material.”

The Board also denied Petitioners’ motion to remand in order to apply for a
waiver of inadmissibility. The Board stated that in order to be eligible for such a waiver,
an alien must be “otherwise admissible.” Because the Board had ruled that Petitioners
had been married before their entry into the United States, which disqualified Nabil from

6
The Board’s reference here was to the Embassy letters, despite the fact that the letters were not
“Israeli documents” but rather letters essentially from the United States Department of State.
No. 09-3243 Hassan v. Holder Page 11

being an unmarried child of a lawfully permanent resident, the Board held that the
Hassans were not eligible for the waiver they sought. Finally, the Board explained that
the IJ’s failure to inform Petitioners of the availability of a waiver of inadmissibility was
irrelevant because Petitioners were not in fact eligible for any such relief.

This appeal followed.

ANALYSIS

I. IJ’s Failure to Recuse

Petitioners’ first argument on appeal is essentially a due process challenge to the
proceedings conducted by the IJ. In particular, Petitioners argue that the immigration
judge improperly refused to recuse herself from the proceedings. Because the Board in
this case issued an independent opinion as to this claim, we review the decision of the
Board as the final agency determination. See, e.g., Morgan v. Keisler, 507 F.3d 1053,
1057 (6th Cir. 2007) (internal citations omitted). Legal conclusions, such as whether or
not a petitioner has proven his or her due process claim, are reviewed de novo. See
Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998) (internal citations omitted).

Although Petitioners are entitled to due process in their removal proceeding, see
Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003), they have failed to show
that the IJ’s failure to recuse herself was a due process violation. “Reviewing an alleged
due process violation is a two-step inquiry: first, whether there was a defect in the
removal proceedings; and second, whether the alien[s] w[ere] prejudiced because of it.”
Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). At different points in their brief,
Petitioners point to three different alleged defects in the process they received: 1) the
immigration judge’s failure to recuse herself due to her previous job as a DHS trial
attorney and later as Chief Counsel of the Detroit DHS office; 2) the IJ’s failure to
recuse herself due to her previous “close working relationship” with Officer Wells; and
3) the IJ’s active questioning of the witnesses during the merits hearing.

None of the allegations on which Petitioners rely amount to a procedural defect,
however. Petitioners’ first allegation is based on the IJ’s allegedly inherent bias due to
No. 09-3243 Hassan v. Holder Page 12

her previous roles at Homeland Security. The government counters that Petitioners have
not pointed to any evidence in the record that suggests that the IJ even had a previous
position at DHS. While we agree that Petitioners have pointed to no evidence of this
assertion, in other proceedings we have taken judicial notice of the fact that Judge
Nettles did hold such positions before becoming an IJ. See Kawuwung v. Holder, 2009
WL 4882520 at *2 (6th Cir. Dec. 17, 2009) (noting that Judge Nettles had once been
Chief Counsel at DHS). Nevertheless, her former role at DHS does not, in itself, amount
to a procedural defect. Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir. 2009); see also
Petrov v. Gonzales, 464 F.3d 800, 803 (7th Cir. 2006) (“The Chief Counsel of a large
[government immigration] office is unlikely to play any role in routine decisions . . . .”).
An immigration judge does have an obligation to recuse him- or herself when he or she
has “served in governmental employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or expressed an opinion
concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3). But
there is nothing in the record to suggest that the immigration judge here, while at DHS,
ever participated in Petitioners’ case in any of the capacities listed in the relevant statute.
Petitioners have not cited to any evidence in the record that suggests otherwise.

Petitioners’ second complaint is that the IJ had a “close working relationship”
with Officer Wells during her tenure at DHS. But this is a bald allegation with no
support in the record. In fact, Petitioners fail to cite any evidence that indicates that
Judge Nettles even knew Officer Wells while she was at DHS.

Petitioners’ final allegation is related to the IJ’s questioning techniques used at
the merits hearing. Petitioners assert that Judge Nettles “actively questioned” Officer
Wells, rehabilitated his credibility through her questions, and impermissibly helped DHS
meet its burden of proof. Immigration judges, however, have “broad discretion in
conducting” removal proceedings. Castellano-Chacon, 341 F.3d at 553. Furthermore,
IJs are statutorily authorized to “interrogate, examine, and cross-examine the alien and
any witness.” 8 U.S.C. § 1229a(b)(1); see Abdulahad, 581 F.3d at 296. Judge Nettles’
behavior did not amount to an abuse of this broad discretion or of Petitioners’ due
No. 09-3243 Hassan v. Holder Page 13

process rights. Although the record indicates that the judge took a somewhat active role
in the examination of several, if not all, of the witnesses, the judge was well within her
rights to do so. Accordingly, we affirm the Board’s decision rejecting Petitioners’ claim
that the IJ should have recused herself.

II. Removability Findings

Petitioners also appeal the Board’s affirmance of the IJ’s findings that Petitioners
were removable. The IJ found, and the Board affirmed, that the Hassans were removable
for two alternative reasons, either of which is sufficient on its own to justify their
removal. First, the IJ found that Petitioners were removable under 8 U.S.C.
§ 1227(a)(1)(A) because they were married prior to Nabil’s entry into the United States.
Second, the IJ found the Hassans removable under 8 U.S.C. § 1227(a)(3)(D) because
Nabil made a false claim of United States citizenship.

A. Standard of Review

In a removal proceeding for a previously admitted alien, the government “has the
burden of establishing by clear and convincing evidence that” Petitioners are removable.
8 U.S.C. § 1229a(c)(3)(A); see, e.g., King v. Holder, 570 F.3d 785, 787 (6th Cir. 2009).
Where, as here, the BIA reviewed the IJ’s decision de novo and issued its own separate
opinion, we review the BIA’s opinion as the final agency determination. Morgan, 507
F.3d at 1057. We review an immigration court’s removability determination under the
“substantial evidence” standard. Stolaj v. Holder, 577 F.3d 651, 657 (6th Cir. 2009).
Under this deferential standard of review, the Board’s decision must be affirmed if it is
“‘supported by reasonable, substantial, and probative evidence on the record considered
as a whole.’” Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (quoting Koliada v.
INS, 259 F.3d 482, 486 (6th Cir. 2001)). “We are not entitled to reverse ‘simply because
[we are] convinced that [we] would have decided the case differently.’” Id. (quoting
Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir. 1995)). Instead, the agency’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); see also Koulibaly v. Mukasey, 541
F.3d 613, 619 (6th Cir. 2008). In other words, “‘in order to reverse the BIA’s factual
No. 09-3243 Hassan v. Holder Page 14

determinations, the reviewing court must find that the evidence not only supports a
contrary conclusion, but indeed compels it.’” Mullai, 385 F.3d at 638 (quoting Klawitter
v. INS, 970 F.2d 149, 152 (6th Cir. 1992)).

B. Prior Marriage Finding

Nabil was granted an F-24 Immigrant Visa as an unmarried child of a lawful
permanent resident. Under 8 C.F.R. § 205.1(a)(3)(i)(I), Nabil (and Sawsan, derivatively)
would be deportable (via 8 U.S.C. § 1227(a)(1)(A)) if Nabil and Sawsan were actually
married when Nabil entered the United States. Accordingly, the government had the
burden to show by clear and convincing evidence that the marriage between Petitioners
occurred before their entry into the country. The validity of a marriage is determined by
the law of the place of celebration. Matter of Luna, 18 I. & N. Dec. 385, 386 (BIA
1983). Pursuant to Israeli law, the Sharia courts (and Sharia law) control personal status
matters of Muslims residing in Jerusalem. Matter of Darwish, 14 I. & N. Dec. 307, 308
(BIA 1973).7 The IJ found, and the BIA affirmed, that the government met its burden
of showing that the Hassans were previously married under this law. We hold, however,
that the evidence on the record, when viewed as a whole, compels the contrary
conclusion that the government did not offer clear and convincing evidence that
Petitioners had completed the steps required for a Muslim marriage under Sharia law
before entering the United States.

The crucial evidence offered by the government (and relied upon by the Board
in its decision) to prove the prior marriage was the two Embassy letters, which state that
the Israeli Ministry of the Interior had on file a document certifying that Petitioners were

7
The administrative record also contains an uncontested letter from the Library of Congress that
confirms the controlling nature of Sharia law. The letter, signed by a Senior Foreign Law Specialist of the
Library of Congress, states the following:
This letter responds to your request of June 27, 2007 for information on recognition of
marriages under the relevant laws in Jerusalem.
Israeli law, applied by Israel to the western part of the city from 1948 to today, and to
the eastern part following the 1967 Six Days War, similarly to the law of the Hashemite
Kingdom of Jordan (which controlled eastern Jerusalem from 1948 to 1967), recognizes
the jurisdiction of religious courts of recognized religious communities in matters of
personal status. These courts generally apply the relevant religious law. Shari-
(Moslem) courts apply Shari-a law to matters within their jurisdiction.
No. 09-3243 Hassan v. Holder Page 15

married in Jerusalem prior to their entry into the United States. For the purposes of our
review here, we will assume that these documents were admissible in the proceedings
despite the fact that they were entirely hearsay statements.8 See Dallo v. INS, 765 F.2d
581, 586 (6th Cir. 1985) (noting that the Federal Rules of Evidence do not apply in
immigration proceedings); but see Alexandrov v. Gonzales, 442 F.3d 395, 404-05 (6th
Cir. 2006) (noting that hearsay statements still pose problems in the immigration context
when those statements are highly unreliable). However, even if these documents were
perfectly reliable, they simply do not show that all four steps required of a Muslim
marriage had occurred in February 1995, as the Board asserts. The Embassy letters
indicate that the Israeli Ministry of the Interior has on file a “marriage certificate” of
Petitioners that is dated Febraury 24, 1995 and that has an identification number of 3769.
However, the letters indicate nothing more. Most importantly, they entirely fail to
specify whether the “certificate” attests to the completion of the entire marriage process,
or whether it simply attests to the completion only of the engagement contract, the third
step of the four marriage requirements. The record contains an uncontested affidavit
from Abdul Jabbar Nasra, a Sharia court agent in Jerusalem. In that affidavit, Nasra
states that he concluded the marriage contract on Febraury 24, 1995, and that the
contract was given the identification number 3769–the same number as the “certificate”
to which the Embassy letters refer. Nasra also states that he did not know whether or
when Nabil and Sawsan completed their marriage process. This affidavit strongly
suggests that the “certificate” referenced in the Embassy letters is nothing more than the
filed copy of the marriage contract to which the Sharia agent refers in his affidavit, as
opposed to some certificate of a completed marriage.9 As noted above, uncontested
record evidence indicates that the completion of the marriage contract is only one step
in the marriage process, and its filing does not complete the steps necessary for a Muslim
marriage. Because the Embassy letters, when viewed against the other evidence in the
record, show only that the marriage contract was filed, the Embassy letters on their own

8
See infra at 17-18.
9
Indeed, the Hassans both testified that this third step of the marriage process had taken place on
this date.
No. 09-3243 Hassan v. Holder Page 16

do not amount to substantial evidence supporting the Board’s conclusion that the
government met its burden of proving by clear and convincing evidence that Petitioners’
marriage was finalized in Jerusalem.

Neither of the Board’s two other justifications help to support its finding that the
government satisfied its burden of proof. After discussing the Embassy letters, the
Board proceeded to the absence of the marriage contract in the record. According to the
Board, the contract could have contradicted the government’s claim that the marriage
process was completed on February 24, 1995. The Board stated that Petitioners had
access to the marriage contract, and that their failure to submit the contract was never
explained. In other words, the Board seemed to negatively infer the absence of the
marriage contract against Petitioners. But such an approach improperly shifts the burden
of proof to Petitioners. If anything, the absence of the marriage contract is an inference
against the government, the party that had the burden to prove that Petitioners were
married (and not just contracted to be married) prior to their entry into the United States.
In its opinion affirming the IJ’s findings, the Board suggests that the government could
not obtain the marriage contract due to privacy concerns. But this statement
mischaracterizes the evidence on record. In fact, the 2005 Embassy letter indicates that
the government expected to obtain a copy of the marriage “certificate” from the Sharia
court, which also apparently had a copy of it. In that letter, the Embassy explicitly states
that it would fax the “certificate” to the government lawyer assigned to Petitioners’ case
as soon as the Embassy received it. The government, however, neither submitted the
“certificate” nor explained its absence from the record. Thus, if a negative inference is
appropriate at all, it should fall on the government. Either way, the absence of the
marriage contract does not help the government meet its affirmative burden of proving
the completion of the marriage.

The Board also relies on the IJ’s finding that much of the testimony provided by
Petitioners and their other witnesses lacked credibility. Although the Board notes
several of the minor inconsistencies made by the various witnesses, these inconsistencies
are simply not relevant to the question at hand. The lack of credibility of the testimony
No. 09-3243 Hassan v. Holder Page 17

offered by Petitioners, even if assumed, does not help the government meet its burden
of proof. At best, it would hurt Petitioners’ ability to rebut the government’s case. But
the testimony and the credibility of Petitioners’ witnesses play no part in the analysis of
whether the government has met its affirmative burden of providing clear and
convincing evidence that Petitioners were married prior to their entry into the United
States. The Board’s reliance on the IJ’s credibility finding improperly shifted the burden
of proof again to Petitioners.

Since the Board cited no other evidence in support of its finding, the only
evidence that was offered by the government as affirmative support for its charge of
removability was the Embassy letters. As noted above, however, those letters did not
amount to clear and convincing evidence that Petitioners had performed all the steps
required for a marriage under Sharia law before they left for the United States. But even
if we were to accept arguendo that a reasonable jurist could conclude that the Embassy
letters alone satisfied the government’s burden here, we could not rely on them to affirm
the Board’s ruling. The Sixth Circuit has previously explained that hearsay
documents–although generally admissible in immigration proceedings if reliable and
timely provided to opposing counsel–may not form the sole basis of a removal finding.
See Alexandrov, 442 F.3d at 406-07; see also Kasa v. Gonzales, 128 F. App’x 435, 440-
41 (6th Cir. 2005). As this Court noted in Alexandrov, this rule is particularly applicable
when the hearsay document in question is a product of the State Department, because the
government should not simply be allowed to “use the prestige of the State Department
letterhead to make its case and give credibility to the letter’s contents.” Alexandrov, 442
F.3d at 405 (quoting Ezeagwuna v. Ashcroft, 325 F.3d 396, 407 (3d Cir. 2003)) (internal
quotation marks omitted).

Based on the framework set out in Alexandrov, the Embassy letters in the instant
case are problematic. Admittedly, Petitioners were provided with the Embassy letters
in a timely fashion, and Petitioners were at least arguably given the opportunity to rebut
the letters. The reliability of the letters, however, is troubling. What is particularly
problematic is that the letters lack any real degree of detail. See id. (noting that lack of
No. 09-3243 Hassan v. Holder Page 18

detail within challenged letter cuts against reliability). After reading the letters, we do
not know who provided the Embassy with the information.10 We do not know how the
files were kept or the procedure for releasing them to the Embassy. We do not know
what the Ministry of Interior contact point stated to the Embassy officials about the
“certificate”; we have no idea how the “certificate” was characterized or whether the
official even explained what the “certificate” actually said. We do not know whether the
official who talked to the Embassy was familiar with Muslim marriage customs, or knew
the difference between a marriage contract and a completed marriage.11 “There is not
much that we do know aside from the apparent conclusions of the mysterious
investigation,” id. at 407, namely, that a document is on file and that it is an official
record of Petitioners’ marriage. Finally, as noted above, the Board’s finding was based
entirely on these letters. See id. Pursuant to Alexandrov, they cannot form the sole basis
of the government’s offer of proof.

For all of the above reasons, we REVERSE the judgment of the Board with
respect to its ruling that the government met its burden of proving Petitioners were
married prior to their entry into the United States.

C. False Statement Finding

The government also charged Petitioner Nabil Hassan as removable under
8 U.S.C. § 1227(a)(3)(D). The IJ found, and the Board affirmed, that the government
met its burden of proving that charge. The relevant statutory language states the
following: “Any alien who falsely represents, or has falsely represented, himself to be
a citizen of the United States for any purpose or benefit under this chapter . . . or any
Federal or State law is deportable.” 8 U.S.C. § 1227(a)(3)(D)(i). Thus, the government
had the burden to show not only that Nabil misrepresented himself as a U.S. citizen, but

10
The letters do indicate that the Embassy was provided with information by the Israeli Ministry
of the Interior, but the letters do not indicate who at the Ministry (i.e. which employee, presumably, or
which division) provided the information.
11
As noted above, Petitioners themselves supplied evidence that the marriage contract was filed
in Jerusalem, but the uncontested evidence on record establishes that the creation of the marriage contract
does not finalize a Muslim marriage.
No. 09-3243 Hassan v. Holder Page 19

also that he did so “for any purpose or benefit” under some law. Id. The federal courts
have begun to provide examples of what qualifies as a “purpose or benefit” under section
1227(a)(3)(D). See, e.g., Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007)
(obtaining private-sector employment qualifies as “purpose or benefit”); Sowah v.
Gonzales, 196 F. App’x 576, 577 (9th Cir. 2006) (applying for U.S. passport qualifies
as “purpose or benefit”); Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005)
(obtaining entry into the United States qualifies as “purpose or benefit”). Petitioners
claim that the government failed to establish that Nabil’s submission of the SBA loan
application had any such “purpose or benefit.” We agree.

In the instant case, the government never attempted to show the “purpose or
benefit” Nabil received, and the Board does not discuss the issue in its opinion. Both the
government and the Board focus on the misrepresentation itself, highlighting that it must
have been knowingly made by Nabil. True, its finding that Nabil had knowledge of the
misrepresentation passes muster under our standard of review. But that does not change
the fact that the government simply offered no evidence of the “purpose or benefit” of
the misrepresentation, despite the fact that it is one of the necessary elements that must
be shown to establish removability under section 1227(a)(3)(D). Presumably, the
government may have assumed that the “purpose or benefit” was the obtainment of the
SBA loan. However, the government made no attempt to explain how, if at all, Nabil’s
immigration status would affect the loan application. In fact, the only evidence on
record with regard to this issue came from Petitioners and indicates that his immigration
status would have no effect on the loan.12 (AR 721, 724) (copies of Nabil’s previous
loan applications, which were granted, and on which Nabil indicated that he was not a
U.S. citizen). Admittedly, Nabil might still be removable notwithstanding the lack of
effect if his “purpose” was to affect his application (even though his immigration status
was irrelevant). There are two fatal problems with this reasoning, however. First, the
government never made this argument or presented any testimony to prove it. Second,

12
The Board here again seems to have misapplied the burden of proof. The Board highlights and
endorses the IJ’s conclusion that Nabil was not credible, thereby disregarding his contention that he did
not knowingly misrepresent himself as a U.S. citizen. But his credibility should play no part in assessing
the evidence offered by the government to meet its burden of proof here.
No. 09-3243 Hassan v. Holder Page 20

the only evidence on record leads to the opposite conclusion. For Nabil had actually
applied for and received multiple similar SBA loans as a resident alien prior to the
applications in question. And in those previous applications, he (properly) asserted that
he was not a U.S. citizen. In other words, Nabil’s past conduct suggests that he did not
subjectively believe that his immigration status affected his application. Thus, the record
compels the conclusion that the government failed to show that Nabil misrepresented
himself for “any purpose or benefit” under state or federal law. Accordingly, we must
also REVERSE the Board’s finding that Nabil was removable under 8 U.S.C.
§ 1227(a)(3)(D).

D. Conclusion

The Board (and the IJ) failed to provide a legally sufficient basis for finding the
Hassans removable. Indeed, the record before the agency at the time the removability
rulings were made did not contain evidence to support those rulings. “Had the BIA
properly applied the facts before it to the law, it would have held that the Petitioner[s
were] not deportable. The proper course in the circumstances before us is to reverse
without a remand for further consideration.” Pickering v. Gonzales, 465 F.3d 263, 271
(6th Cir. 2006) (internal citation omitted) (reversing and remanding with instructions to
end removal proceedings in analogous situation). Accordingly, we will do so in this case
as well.

III. Waivers/Motion to Remand

Petitioners also appeal the Board’s ruling denying their motion to remand the
record in order to apply for a waiver of inadmissibility. The Board’s decision and
Petitioners’ appeal with respect to these claims are moot, however, in light of our
previous rulings here. Therefore, we decline to address them now.
No. 09-3243 Hassan v. Holder Page 21

CONCLUSION

For the foregoing reasons, we AFFIRM in part and REVERSE in part the opinion
of the Board of Immigration Appeals. The petition is granted, and the case is
REMANDED to the Board of Immigration Appeals so that it may quash the removal
order and terminate the removal proceedings against Petitioners.