Atieh v. Riordan

United States Court of Appeals
For the First Circuit

No. 14-1947

RANIAH FATHI ATIEH and FUAD FAROUQ ATIEH,

Plaintiffs, Appellants,

v.

DENIS C. RIORDAN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Thompson, Circuit Judges.

Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC for appellants.
Benjamin C. Mizer, Acting Assistant Attorney General, Office
of Immigration Litigation, Civil Division, United States
Department of Justice, William C. Peachey, Director, Colin A.
Kisor, Deputy Director, and J. Max Weintraub, Senior Litigation
Counsel, for appellees.

August 14, 2015
 SELYA, Circuit Judge. To borrow a phrase often

attributed to a homespun philosopher, Lawrence "Yogi" Berra, this

case is déjà vu all over again. For a second time, Fuad Farouq

Atieh and his wife Raniah appeal from a district court judgment

affirming a decision of the Board of Immigration Appeals (BIA)

denying Raniah's petition to grant Fuad lawful permanent resident

status. After careful consideration, we affirm.

I. BACKGROUND

Fuad Atieh, a Jordanian national, entered the United

States on a six-month visa in 1992. He overstayed, and roughly a

decade later (on March 17, 2003), he was placed in removal

proceedings by the United States Citizenship and Immigration

Services (USCIS). While those proceedings were pending, Fuad

married his first cousin, Jamileh Khudari (a U.S. citizen), at a

January 2004 ceremony in Lowell, Massachusetts. His new wife

subsequently filed an I-130 visa petition for an alien relative

(here, Fuad). See 8 U.S.C. § 1151(a)(1). The marriage quickly

disintegrated: Fuad and Jamileh divorced on December 12, 2004.

Not surprisingly, Jamileh withdrew her I-130 petition.

In August of 2005, Fuad married Raniah, who was also a

U.S. citizen. Some two months later, Raniah filed an I-130

petition on Fuad's behalf. On March 3, 2006, USCIS interviewed

Fuad and Raniah in connection with that petition. Fuad told the

examining officer that his earlier marriage to Jamileh had been

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arranged by the couple's parents and that he had never been in

love with her. He admitted, though, that he and his parents had

hoped that he might acquire lawful permanent resident status

through Jamileh.

In May of 2006, USCIS issued a notice of intent to deny

the I-130 petition. See 8 U.S.C. § 1154(c). The notice cited the

allegedly fraudulent nature of Fuad's first marriage as the impetus

for USCIS's intended decision and invited the applicants to submit

any additional evidence that they might have in support of their

position. The Atiehs responded by submitting several affidavits,

including affidavits from Jamileh, Jamileh's parents, Fuad's

parents, and Fuad himself. In his statement, Fuad acknowledged

that, prior to marrying Jamileh, he had expressed a romantic

interest in Raniah and had contacted her parents to gain their

approval, only to be rebuffed.

On December 6, 2007, USCIS denied the I-130 petition.

It found, based on the record as a whole, that Fuad's marriage to

Jamileh was designed to evade the immigration laws. This decision

was upheld by the BIA, which concluded that the Atiehs had failed

to prove the bona fides of Fuad's first marriage.

The Atiehs countered by attacking on two fronts. First,

they sued in the federal district court, seeking to set aside the

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BIA's ukase.1 Second, they filed yet another I-130 petition with

USCIS. The district court prudently held the Atiehs' suit in

abeyance pending the agency's adjudication of the new petition.

The Atiehs achieved no better result the second time

around. On March 25, 2010, they received notice of USCIS's intent

to deny their latest petition. The notice explained that

affidavits from various family members showed no compelling

evidence that the marriage between Fuad and Jamileh was either

bona fide or contracted in good faith. Moreover, bank statements

submitted by the Atiehs showed little if any evidence of any

comingling of marital funds between Fuad and Jamileh. Although

the Atiehs objected to this notice, they proffered no additional

evidence and USCIS denied relief on May 5, 2010. The BIA

subsequently affirmed. Undaunted, the Atiehs filed an amended

complaint in their district court suit.

The district court dissolved its earlier stay of

proceedings and, in October of 2012, granted the defendants' motion

to dismiss for failure to state a claim upon which relief could be

granted.2 See Atieh v. Riordan, No. 09-10977, 2012 WL 4498909, at

1The district court had jurisdiction over such a suit
pursuant to the judicial review provisions of the Administrative
Procedure Act (APA), 5 U.S.C. § 706. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
2 The defendants are Denis C. Riordan, Director, Boston
Service Center; Jeh C. Johnson, Secretary, Department of Homeland

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*5 (D. Mass. Oct. 2, 2012); see also Fed. R. Civ. P. 12(b)(6). We

vacated the order of dismissal on procedural grounds, without

reaching the merits. See Atieh v. Riordan, 727 F.3d 73, 77 (1st

Cir. 2013).

Remitted to the district court, the parties cross-moved

for summary judgment on the issue of whether the administrative

record adequately supported the denial of I-130 relief. The

district court granted summary judgment in the government's favor,

thus affirming the BIA's final order.3 See Atieh v. Riordan, No.

09-10977, 2014 WL 3749430, at *1 (D. Mass. July 30, 2014).

II. ANALYSIS

Under the APA, a reviewing court may set aside an

agency's decision if it is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law," such as

if it is "unsupported by substantial evidence." 5 U.S.C. § 706(2);

see River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st

Security; Loretta E. Lynch, United States Attorney General; Carmen
M. Ortiz, United States Attorney, District of Massachusetts; and
Michael Aytes, Director, USCIS. For ease in exposition, we refer
to them collectively as the government.

3The Atiehs' amended complaint does not distinguish between
the two adverse BIA decisions. The district court determined,
however, that "the denial of the first [I-130] petition was
effectively superseded by the denial of the second petition."
Atieh, 2012 WL 4498909, at *1. The Atiehs have not challenged
this determination, so we focus the lens of our inquiry on the
BIA's denial of the most recent I-130 petition.

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Cir. 2009). This standard is quite narrow: a reviewing court "may

not substitute its judgment for that of the agency, even if it

disagrees with the agency's conclusions." River Street Donuts,

558 F.3d at 114. Consequently, judicial review of agency decisions

is "highly deferential." Id. If the agency's decision is

supported by any rational view of the record, a reviewing court

must uphold it. See id.

Because both the district court and this court are bound

by the same standard of review, our review of the district court's

decision in an APA case is de novo. See Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 144 (1st Cir. 2007). Thus, our review in

this case is, in effect, direct review of the BIA's decision.

With the standard of review in place, we turn to the

Immigration and Nationality Act (the Act). Under the Act, an alien

may achieve lawful permanent resident status if he qualifies as an

"immediate relative" of a U.S. citizen. See 8 U.S.C.

§ 1151(b)(2)(A)(i); see also Taing v. Napolitano, 567 F.3d 19, 21

(1st Cir. 2009). For this purpose, the term "immediate relative"

includes children, parents, and spouses. See 8 U.S.C.

§ 1151(b)(2)(A)(i).

To obtain the benefit of these provisions, an interested

citizen must file an I-130 petition with the Attorney General on

behalf of her immediate relative/alien. See id.

§ 1154(a)(1)(A)(i). Where the immediate relative/alien is a

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spouse, the Act provides for especially careful scrutiny of the

petition. If the Attorney General determines either that the alien

entered into a marriage "for the purpose of evading the immigration

laws" or that the alien "attempted or conspired" to do so, the

alien will be rendered ineligible for lawful permanent resident

status. See id. § 1154(c).

Here, moreover, yet another hurdle must be cleared. When

an alien enters into a marriage after the government has initiated

removal proceedings — as Fuad did — the alien must carry the burden

of demonstrating, by clear and convincing evidence, that he entered

into the marriage in good faith. See id. § 1255(e)(3).

An agency's finding regarding the bona fides of a

marriage is normally regarded as a finding of fact. See Agyei v.

Holder, 729 F.3d 6, 14 (1st Cir. 2013); Krazoun v. Ashcroft, 350

F.3d 208, 210-12 (1st Cir. 2003). Thus, such a finding is reviewed

under the substantial evidence standard. See Agyei, 729 F.3d at

13; Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012). This

means that a court "cannot contravene the agency's factfinding

unless a reasonable adjudicator would be compelled to reach a

contrary conclusion." Agyei, 729 F.3d at 13. Within this rubric,

a credibility determination is a finding of fact; and we will

uphold such a finding so long as the agency "articulate[s] specific

and cogent reasons" to support its view. Ahmed v. Holder, 765

F.3d 96, 101 (1st Cir. 2014).

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 This brings us to the Atiehs' arguments on appeal. Their

asseverative array boils down to a plaint that the BIA erred in

concluding that Fuad's first marriage was fraudulent.

Specifically, they argue that the BIA misconstrued certain

evidence, ignored other evidence indicating that Fuad's first

marriage was bona fide, and failed to consider the record in its

entirety. We address these arguments as a seamless whole.

The BIA relied heavily on the trial-level decision of

USCIS, which gave ample scrutiny to the record (including the

interviews with the Atiehs and the various affidavits). Several

key facts led the agency to its conclusion that Fuad's first

marriage was fraudulent. We enumerate some of those facts.

 Fuad married Jamileh only after removal proceedings had been

instituted against him.

 He entered into that marriage notwithstanding a demonstrated

romantic interest in Raniah.

 During his USCIS interview in March of 2006, Fuad acknowledged

not only that his parents had pressured him to marry Jamileh

but also that both he and his parents had hoped that the

marriage would prove to be a vehicle for obtaining lawful

permanent resident status.

 Fuad admitted that he had unsuccessfully pursued a romantic

relationship with his present wife even before he married

Jamileh.

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  The bank statements and other data in the record showed little

or no commingling of funds between Fuad and Jamileh during

their marriage.

These facts, when viewed in concert, were sufficient to support

USCIS's inference that Fuad had never intended to have a lasting

marriage with Jamileh but, rather, had used his first marriage

only as a contrivance to avoid deportation and pave the way for

securing a favorable immigration status. The BIA agreed: it

supportably found that the record, viewed in its totality,

indicated that "[Fuad's] intention all along was to marry [Raniah]

and not remain married to [Jamileh]." There is no principled way

for us to say that the BIA's determination lacked a rational basis.

The BIA marshalled specific reasons for finding Fuad's first

marriage fraudulent and cogently explained its reasoning. No more

is exigible. See Ahmed, 765 F.3d at 101. After all, the agency

is in the best position to gauge the inferences to be drawn from

the facts, see Syed v. Ashcroft, 389 F.3d 248, 251-52 (1st Cir.

2004), and we have no basis here for second-guessing its assessment

of those facts.

This is especially true due to the weight of the burden

that the Atiehs must shoulder. Once the BIA decided the marriage

fraud issue against them, they had an obligation to point to

evidence "'so compelling that no reasonable fact finder could fail'

to find that [Fuad] had a bona fide marriage." Mendes v. INS, 197

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F.3d 6, 13 (1st Cir. 1999) (quoting INS v. Elias-Zacarias, 502

U.S. 478, 483-84 (1992)). They have not come close to fulfilling

that obligation.

The Atiehs demur, offering a salmagundi of reasons why

the agency's decision is infirm. None of these reasons is

persuasive.

To begin, the Atiehs argue that the BIA misconstrued

several key pieces of evidence, such as Fuad's statements about

hoping to obtain lawful permanent resident status through his

marriage to Jamileh and his admission about his prior courtship of

Raniah. As to the former, the Atiehs suggest that the involvement

of Fuad's parents in his first marriage proves that this was

intended to be a lasting union. As to the latter, they suggest

that Fuad's initial pursuit of Raniah demonstrated only that he

was "looking for a permanent wife." There may be plausible

interpretations of Fuad's admissions, particularly given the

evidence that the Atiehs submitted describing the cultural norms

surrounding an arranged marriage. As even the BIA acknowledged,

"arranged marriages are not fraudulent per se, so long as the

intent of the parties at the time the marriage was entered into

was to establish a life together." But Fuad's interpretations are

not the only reasonable ones.

This is a critical distinction. Under the deferential

standard of review, we may not disturb the agency's factfinding

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unless "a reasonable adjudicator would be compelled to reach a

contrary conclusion." Agyei, 729 F.3d at 13. That benchmark

cannot be achieved when — as in this case — the raw facts support

competing but reasonable inferences. See Villafranca v. Lynch,

___ F.3d ___, ___ (1st Cir. 2015) [No. 14-1881, slip op. at 4];

Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219-20 (1st Cir.

2007).

Next, the Atiehs submit that Fuad's admissions cannot

justify the denial of an I-130 petition because they do not

constitute direct admissions that he is guilty of marriage fraud.

This is pure codswallop: although an admission of guilt is surely

sufficient for a finding of marriage fraud, such an admission is

not a sine qua non for such a finding. See, e.g., Mendes, 197

F.3d at 13 (upholding BIA's finding that alien committed marriage

fraud in the absence of any admission of guilt). It is perfectly

appropriate for an agency to rely on reasonable inferences in

determining the existence vel non of marriage fraud.4

4 In all events, even if particular facts "may not have been
sufficient individually to establish a finding of fraud," those
same facts, when taken together, may provide "ample support" for
an agency to infer a fraudulent marriage. Agyei, 729 F.3d at 15;
cf. Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25,
34 (1st Cir. 2012) (noting, with regard to evidentiary
presentations, that "the whole is sometimes greater than the sum
of the parts").

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 We find equally unconvincing the Atiehs' contention that

the BIA should have given greater weight to the affidavits

submitted by Jamileh, Jamileh's parents, and Fuad's parents.

Weighing the evidence is, within wide limits, the exclusive

province of the agency, see Ayeni v. Holder, 617 F.3d 67, 72-73

(1st Cir. 2010) — and those limits have not been exceeded here.

To the contrary, the agency fully discharged its duty by fairly

considering the Atiehs' submissions and "articulat[ing] its

decision in terms adequate to allow a reviewing court to conclude

that the agency has thought about the evidence and the issues and

reached a reasoned conclusion." Raza v. Gonzales, 484 F.3d 125,

128 (1st Cir. 2007). On this record, then, we lack the authority

to "substitute [our] judgment for that of the agency." River

Street Donuts, 558 F.3d at 114.

For essentially the same reasons, we reject the Atiehs'

assertion that the agency erred in failing fully to consider

evidence relating to the post-marriage conduct of Fuad and Jamileh.

The record makes manifest that the agency considered the post-

marriage evidence but found — reasonably, in our view — that this

evidence did not inure to the Atiehs' benefit.

The short of it is that this is a case of dueling

inferences drawn from largely undisputed facts. We have said

before — and today reaffirm — that when the BIA is faced with "two

plausible but conflicting inferences from a body of evidence, the

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BIA's choice between those inferences is by definition supported

by substantial evidence." Ruiz v. Mukasey, 526 F.3d 31, 37 (1st

Cir. 2008). So it is here.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the district court's judgment is

Affirmed.

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