Acheampong v. Keisler

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0717n.06
Filed: October 4, 2007

No. 06-4068

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ALICE ACHEAMPONG, )
)
Petitioner-Appellant, )
) ON PETITION FOR REVIEW
v. ) OF AN ORDER OF THE
) BOARD OF IMMIGRATION
PETER D. KEISLER, ) APPEALS
Acting Attorney General )
)
Respondent-Appellee.

Before: BOGGS, Chief Judge; and MARTIN and SUTTON, Circuit Judges

BOGGS, Chief Judge. An Immigration Judge (IJ) decided that Alice Acheampong’s marriage

was a sham, denied her petition for permanent resident status, and ordered her deported. The Board

of Immigration Appeals (BIA) affirmed, but allowed Acheampong to depart voluntarily.

Acheampong appeals and we affirm because the record does not compel a contrary conclusion.

I

Acheampong, a native and citizen of Ghana, used her sister-in-law’s documents to enter the

United States on April 20, 1992. She filed for asylum with the agency then known as the INS in

1992. The application was referred to the Executive Office of Immigration Review in 1995, but no

decision was reached. According to Acheampong’s testimony before the IJ, in 1995 Acheampong

was introduced to Hosea Evans, a United States citizen, by her sister-in-law. After four dates, Evans
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proposed and the pair married in Toledo on March 29, 1996. On October 9, 1996, Acheampong

adjusted her status to “conditional permanent resident” based on the marriage. The couple filed a

joint petition to remove the condition on her residency on July 15, 1998, slightly more than two years

after the marriage as required by the statutory scheme. In 1999, Officer Daniel Wells of the INS

reviewed Acheampong’s petition, interviewed the couple, and became suspicious because the couple

“knew very little about one another” and “did not reside together.” He submitted the case for further

action, but for reasons not in the record the case was returned to him in 2001 without any further

action having been taken.

Wells re-interviewed the couple in November of 2001. This time the interview was

videotaped, and the couple brought counsel. Before the interview, Wells learned that both

Acheampong and Evans filed their taxes as “Head of Household” from separate addresses and that

their joint bank account showed minimal activity. At the interview, Acheampong and Evans told

different stories on multiple subjects, including whether they knew certain members of each other’s

family and when and where they lived together. Acheampong could not give the names or ages of

Evans’s children from his previous marriage or give any information about his hospitalization

following a recent stroke. Despite being a Registered Nurse, she misidentified which side of his

body the stroke harmed and could not identify any of the medicines he was taking.

On April 10, 2002, the INS denied Acheampong’s petition and on April 11 issued her a

Notice to Appear in removal proceedings. Acheampong appeared before an IJ on April 4, 2003 and

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denied removability, challenged the termination of her status as a permanent resident, and renewed

her asylum claims.1 A full hearing was held on February 9, 2005.

At the hearing, Acheampong admitted that she has not listed Evans as a beneficiary on her

health insurance or her retirement plan. She could not say where he attends church. When

confronted with the separate tax returns, she blamed the preparers. She claimed that the couple

began living together after their marriage, lived apart from July 2001 to late 2004 because of

personal problems, financial problems, and Evans’s stroke, but then began living together again

when they purchased a home in November 2004. When shown loan documents listing both

Acheampong and Evans as single people residing at separate addresses, Acheampong once again

claimed ignorance and blamed the preparers.

Evans testified that he suffered a stroke in 2000 that prevented him from working and created

memory problems. He said that the couple lived together “on and off.” When asked to clarify that

statement, he replied “[w]ell, she worked and I worked and we lived together because, on and off

because it seemed like it was better that way.” Later, when asked where he lived immediately after

he married Acheampong, he answered “with my daughter (from a previous marriage).” As to the

taxes and the loan applications, he also blamed the preparers. His testimony repeatedly conflicted

with Acheampong’s, but the BIA discounted those inconsistencies because of Evans’s poor health.

1
Acheampong also filed a claim under the Convention Against Torture. She based the
asylum and the torture claim on three arrests She ultimately acknowledged that the political situation
in Ghana had changed, admitted that she had returned to Ghana at least twice since she left, and
withdrew her asylum claims at the February 9, 2005, hearing before the IJ.

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The only other witnesses were Officer Wells and Acheampong’s brother, who testified that

he was present at the couple’s wedding ceremony. Acheampong submitted evidence that the couple

owned a joint bank account, but it showed minimal activity. Acheampong also submitted “Letters

of Support” from six people who claimed to know the couple well, but four of these letters contained

only identical two-sentence statements. The others came from Acheampong’s brother and sister-in-

law.

On February 10, 2005, the IJ ruled that Acheampong’s marriage was a sham. He discussed

the lack of documentary evidence and stated that he still could not determine whether Acheampong

and Evans had lived together before 2004. He stressed that it was not the fact that they lived apart

that was troubling, but the “inability of the respondent and her own witnesses, the petitioning spouse

and the brother, to agree on when they lived together” that made him skeptical.

When Acheampong appealed to the BIA, the BIA acknowledged certain “irregularities” in

the 2001 interview2 and also noted Evans’s medical condition at the 2005 hearing. Therefore, the

BIA placed only limited weight on the inconsistencies at the 2001 interview and Evans’s testimony

at the 2005 hearing. Nevertheless, the BIA pointed to seven other facts that supported the IJ’s

decision and affirmed. This appeal followed.

2
The irregularities were that Wells misled the couple at the 2001 interview about whether
a prior investigation had been conducted on their marriage and that Wells told a trainee that he
thought Acheampong was Nigerian and that Wells had prior experience with Nigerians and credit
card fraud. Wells defended his statement about credit card fraud as giving the trainee more
information for future cases and said it played no role in his decision about Acheampong. While we
do not condone Wells’s conduct, we see no way that it prejudiced the hearing before an independent
IJ, especially given the BIA’s minimal reliance on Wells’s interview.

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II

At trial, the government must prove that an alien’s marriage is fraudulent and that the alien

is therefore removable.3 8 U.S.C. § 1186a(c)(3)(D). However, on appeal we ask only if the BIA’s

decision, under the proper standard, was supported by substantial evidence. Klatwitter v. INS, 970

F.2d 149, 151 (6th Cir. 1992). Under this standard, “[a] factual determination by the Board that an

alien’s marriage was entered for the purpose of gaining entry into the United States is conclusive if

it is supported by reasonable, substantial, and probative evidence in the record considered as a

whole.” Bazzi v. Ashcroft, 118 F. App’x 953, 956 (6th Cir. 2004). This is a deferential standard;

we cannot reverse merely because we would have decided the case differently. Indeed, the Supreme

Court has told us that “[t]o reverse [a] BIA finding we must find that the evidence not only supports

that conclusion, but compels it.” INS v. Elias-Zacharias, 502 U.S. 478, 481 n.1 (1992) (emphasis

in original). The deferential standard dictates our decision to affirm.

III

An alien who marries a United States citizen can apply for lawful permanent resident status.

For the first two years, the alien is given only conditional permanent residence. See 8 U.S.C. §§

1186a(a)(1), (g)(1). After two years, the alien and his or her spouse must file a petition to remove

the condition. This is what Acheampong did. In normal cases, the government will grant permanent

3
Acheampong’s brief alleges that the BIA wrongly altered this burden of proof by pointing
out her “failure to produce witnesses, other than her brother, who knew the couple when they first
married,” among six other persuasive facts that support the IJ’s decision. However, listing a lack
of witnesses among other persuasive facts does not amount to requiring Acheampong to produce
witnesses in order to prevail or switching the burden of proof, and we reject her attempt to
characterize it as such.

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resident status, but if the Attorney General finds that “the qualifying marriage . . . was entered into

for the purposes of procuring the alien’s admission as an immigrant” the Attorney General may

notify the parties, terminate the alien’s conditional permanent resident status, and begin removal

proceedings. 8 U.S.C. § 1186a(b)(1)(A). A marriage formed to help one spouse circumvent

immigration law and not as the couple’s good faith attempt to start a life together is called a

“fraudulent or sham marriage, and has not been recognized as enabling an alien spouse to obtain

immigration benefits.” Matter of McKee, 17 I. & N. Dec. 332, 333 (BIA 1980).

Federal regulations explain that whether a marriage was formed in good faith depends on

“‘the amount of commitment by both parties to the relationship.’” El-Hadi v. INS, No. 98-4282, 1999

WL 825042, at *4 (6th Cir. Oct. 8, 1999) (quoting 8 C.F.R. § 216.5(e)(2)). Evidence of commitment

includes “documentation relating to the degree to which assets and liabilities were combined, the

length of time the parties cohabited, birth certificates for children born to the marriage, and ‘[o]ther

evidence deemed pertinent by the director.’” Ibid. Additional relevant evidence includes “proof that

the petitioner’s spouse has been listed on insurance policies, property leases, income tax forms, or

bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared

residence, and experiences.” Matter of Soriano, 19 I. & N. 764, 766 (BIA 1988). The seminal case

explained that courts must consider the evidence and ask whether the parties “intend[ed] to establish

a life together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975).

Conduct after the marriage is evidence of the couple’s state of mind at the time they married. Id. at

1202. Our court has quoted both the BIA opinions and Bark with approval. See Ayyoub v. INS, 93

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F. App’x 828, 832 (6th Cir. 2004) (quoting Bark); El-Hadi, 1999 WL 825042, at *4 (quoting Bark

and McKee).

Applying the standard of review and the governing law, we ask whether substantial evidence

supports the BIA’s conclusion that Acheampong and Evans did not intend to establish a life together

when they married. See Klatwitter, 970 F.2d at 151; Bark, 511 F.2d at 1201. The BIA found the

following facts persuasive: (1) The parties’ repeated decision to file separate tax returns each

claiming “Head of Household” status and each using a different address from the other; (2)

Acheampong’s failure to list Evans as a beneficiary on her life insurance or pension; (3) the loan

application listing both Acheampong and Evans as single adults; (4) Acheampong’s failure to

produce witnesses other than her brother who knew the couple when they first married; (5) lack of

evidence of shared finances; (6) Acheampong’s ignorance of Evans’s religion, income, or

medication; and (7) lack of consistent evidence that the couple shared a home before removal

proceedings began. We review the record and find all these conclusions factually supported by the

evidence and legally relevant based on our cases.

For the first eight years of their marriage, Acheampong and Evans filed separate tax returns

claiming “Head of Household” status and giving separate addresses. Failure to file a joint tax return

is evidence that the marriage is a sham. Sinadinovski v. INS, No. 95-3730, 1996 WL 435606, at *1

(6th Cir. Aug. 1, 1996). Acheampong blames the tax preparers. Tax preparers may make mistakes,

but they also rely on the information they are given. Eight consecutive years of filing as separate

“Heads of Household” from separate addresses suggests separate lives.

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Acheampong admitted that she did not list Evans as a beneficiary on her life insurance or

pension. Listing or failing to list a spouse on such policies is relevant evidence. Sinadinovski, 1996

WL 435606, at *3; Matter of Soriano, 19 I. & N. 764, 766 (BIA 1988). Acheampong offers

alternative explanations for these inconvenient facts, but the mere existence of a plausible alternative

explanation does not disprove the government’s assertion or the BIA’s findings. An ambiguous fact

consistent with both Acheampong’s position and the BIA’s finding does not compel us to agree with

Acheampong and thus reverse the BIA. See Elias-Zacharias, 502 U.S. at 481 n.1.

Identical analysis applies to the loan application listing Acheampong and Evans as single

adults living at separate addresses. Acheampong once again blames the third-party preparer, but we

repeat that the preparer can only use information she is given. More importantly, the application is

consistent with two people who do not hold themselves out as married unless the immigration

authorities are watching.

Acheampong’s failure to produce witnesses, other than her brother, who knew the couple at

the time of marriage is telling given that the focus is on the parties’ intent at the time of the marriage.

As mentioned earlier, the record includes several “Letters of Support” by people claiming to know

the couple, but a majority of the letters come from people who did not know the couple before 2000

and consist solely of the same two sentences. None of the authors appeared at the hearing to face

cross-examination. Our court has relied on a lack of witnesses to a couple’s relationship to affirm

the BIA. See El-Hadi, 1999 WL 825042, at *4.

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Substantial evidence supports the BIA’s conclusion that the couple did not share financial

resources. Acheampong presented records of a shared bank account. However, an account listing

two names without evidence that both parties actually used the account is not evidence of shared

finances. Ayyoub, 93 F. App’x at 832-33. Acheampong’s first account, with Michigan National

Bank, shows minimal activity. The second account, with Comerica, shows slightly more activity,

with a small deposit every one to two months. But the second account is less persuasive because it

was established only after removal proceedings began. Nowhere is there evidence of a joint account

that was consistently used by both parties. Acheampong relies on photocopies of three checks she

wrote to Evans for groceries as evidence of shared finances. But three checks, for a total of $130,

is not the kind of evidentiary record that “compels” us to disagree with the BIA.

Acheampong could not give the court information about Evans’s job, religion, or even the

medication he takes. Neither this court nor the BIA expects spouses to know everything about each

other, but it is telling when a nurse cannot be sure what medication her husband takes for his stroke.

Finally, there is the question of living arrangements. At both the 2001 interview and at the

2005 hearing, the couple gave conflicting stories about when they lived together. While they were

living together from November 2004 onwards (after removal proceedings began), there is no

documentary evidence that they lived together before that time. The parties admit they often lived

apart between 2001 and 2004. As the IJ pointed out, even Acheampong and her own witnesses could

not agree when the couple lived together before July of 2001. The best the couple could say is that

they lived together “on and off.”

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Merely living apart does not make the marriage a sham, but “we have on several occasions

viewed evidence of an alien’s living separately from his or her spouse as support for the conclusion

that the marriage is not bona fide.” Ly v. Gonzalez, 185 F. App’x 451, 454-55 (6th Cir. 2006) (citing

Bangura v. Hansen, 434 F.3d 487, 503 (6th Cir. 2006) and United States v. Kone, 307 F.3d 430, 434

(6th Cir. 2002)). Sporadically living together is also evidence that a marriage is not bona fide.

Ayyoub, 93 F. App’x 828, 833 (6th Cir. 2004).

Acheampong contends that Bark and McKee preclude the BIA from finding that her marriage

was a sham simply because she did not live with her husband. Her contention is correct but

irrelevant. The BIA did not reach its decision based on living arrangements alone, but on all of the

evidence previously mentioned. Bark itself says that evidence of separation “is relevant in

ascertaining whether they intended to establish a life together when they exchanged marriage vows.”

Bark, 511 F. 3d at 1202; see also McKee, 17 I. & N. at 334 (“although separation in and of itself is

no longer a valid basis for denial, . . . it is a relevant factor in determining the parties’ intent at the

time of the marriage, i.e., whether the marriage is a sham.”). The BIA correctly treated separation

as relevant but not dispositive evidence.

Acheampong also cites McKee, arguing that the BIA may not deny her petition because it

finds that her marriage is “not viable.” McKee, 17 I. & N. at 333. But that is not what the BIA did.

Viability deals with the ongoing status of a marriage and current relationship between the parties.

Fraud looks to the intent of the parties when the marriage was formed. See ibid. Viability is

irrelevant because the BIA found her marriage fraudulent.

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Finally, we note that this court has repeatedly affirmed BIA decisions finding a sham marriage

on records similar to the one before us now. In El-Hadi we affirmed the BIA where there was no

credible evidence of joint ownership of property, commingling of finances, or documentation that the

parties entered the marriage in good faith. El-Hadi, 1999 Wl 825042, at *4. In Ayyoub we affirmed

the BIA’s finding where the parties often lived apart, the joint checking account showed no evidence

of joint use, there was no joint property, and the parties knew little of each other. Ayyoub, 93 F.

App’x at 833. The Seventh Circuit affirmed an IJ’s finding that a marriage was not bona fide when,

as with Acheampong, the couple told different stories about the marriage, had a short period of

cohabitation, misrepresented their addresses, and could not show that they shared any assets or

liabilities. Nikrodhanondha v. Reno, 202 F.3d 922, 925 (7th Cir. 2000). Most recently, we affirmed

the BIA when the spouses gave different addresses on an immigration form and one spouse missed

an immigration hearing. See Ly, 185 F. App’x at 451.

Most of the facts in these cases are also present in Acheampong’s case. As in Ayyoub, here

the parties often lived apart, cannot provide basic information about each other, and the joint bank

account shows no evidence of joint use. As in El-Hadi, here we see a lack of commingled finances

and documentation. Nikrodhanondha is most on point because there, as here, the parties told different

stories about the marriage, cohabited sporadically, gave different addresses, and could not show

shared finances. Indeed, Acheampong presents an even stronger case for affirming the BIA, given

the loan form listing the parties as single with separate addresses and the eight years of tax returns

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where Acheampong and Evans filed as separate “Heads of Household” from separate addresses. The

BIA had substantial evidence for its conclusion.

We therefore AFFIRM the Board’s decision.

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