11-3381
Hasan v. Holder
BIA
Montante, Jr., IJ
A078 417 964
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of May, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________
SYED MOHAMMAD S. HASAN,
Petitioner,
v. 11-3381
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: David C. Drake, Carliner & Remes,
P.C., Washington, D.C.
FOR RESPONDENT: Stuart Delery, Acting Assistant
Attorney General; Blair T. O’Connor,
Assistant Director; Juria L. Jones,
Trial Attorney, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Syed Mohammad S. Hasan, a native and citizen
of Pakistan, seeks review of the July 22, 2011, decision of
the BIA affirming the August 28, 2009, decision of
Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering
him removed. In re Syed Mohammad S. Hasan No. A078 417 964
(B.I.A. July 22, 2011), aff’g No. A078 417 964 (Immig. Ct.
Buffalo Aug. 28, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions. See Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s
factual findings, including adverse credibility findings,
under the substantial evidence standard, treating them as
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008) (per curium). We review
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questions of law de novo. Aliyev v. Mukasey, 549 F.3d 111,
115 (2d Cir. 2008).
As an initial matter, the government correctly contends
that Hasan failed to exhaust before the BIA his arguments
that: (1) the IJ erred in placing the burden on him to
demonstrate that he was not inadmissible; (2) his removal
proceedings should have been terminated to allow him to
apply for adjustment of status; and (3) the IJ violated his
due process rights by failing to provide him with an
opportunity to cross-examine the Border Patrol agent who
prepared his Form I-213, Record of Deportable/Inadmissible
Alien. We do not consider these unexhausted arguments. See
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–20 (2d
Cir. 2007) (concluding that exhaustion of administrative
remedies is a predicate of this Court’s subject matter
jurisdiction, while the failure to exhaust specific issues
is an affirmative defense subject to waiver).
The agency did not err in finding that Hasan was
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which
provides that “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other
documentation, or admission into the United States or other
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benefit provided under this chapter is inadmissible.” See
also Aslam v. Mukasey, 537 F.3d 110, 116-17 (2d Cir. 2008)
(concluding the IJ did not err in finding the Government met
its burden of showing that petitioner is removable from the
United States in a case of marriage fraud). We have also
held that a “misrepresentation is material if it ‘has a
natural tendency to influence or was capable of influencing,
the decision of the decisionmaking body to which it was
addressed.’” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.
2005) (quoting Kungys v. United States, 485 U.S. 759, 770
(1988)).
Here, the record includes a sworn statement, in which
Hasan: (1) stated that he paid his first wife two thousand
dollars to marry him so that he could obtain lawful
immigration status; and (2) admitted that he had been
untruthful when questioned by Customs and Border Patrol
(“CBP”) agents regarding the location of his immigration
documents because he thought they would release him from
custody and allow him to enter the United States to retrieve
the documents. Before the agency, Hasan admitted the
accuracy of the sworn statement and argued only that the
statement regarding his payment to his first wife should not
be construed literally because the payment was a dowry
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required by his religion rather than a payment for
participation in marriage fraud.
However, the IJ did not err in declining to credit
Hasan’s explanation, particularly given that: (1) Hasan, who
had volunteered the information that he paid his first wife,
failed to mention that he gave his second wife a dowry; (2)
the two thousand dollar payment, which included a payment
upon divorce, more closely resembled a commercial
transaction than did the unconditional gift of gold jewelry
that Hasan provided his second wife; and (3) Hasan failed to
provide a consistent account regarding where he and his
first wife had lived during their relationship, thereby
further calling into question its validity. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (explaining
that, although an IJ must consider an applicant’s
explanations, he need not credit them unless a reasonable
fact-finder would be compelled to do so); see also Xiu Xia
Lin, 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency
or omission in making an adverse credibility determination
as long as the ‘totality of the circumstances’ established
that an asylum applicant is not credible”) (internal
citation omitted) (emphasis in original). Thus, based on
Hasan’s admission that he paid his first wife to marry him
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in an attempt to procure a visa, the agency did not err in
finding him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
Moreover, the IJ reasonably found that, even if Hasan’s
first marriage was legitimate, he was nevertheless
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) because he
admitted in his sworn statement that he had lied to CBP
agents regarding the whereabouts of his immigration
documents in order to enter into the United States.
See 8 U.S.C. § 1182(a)(6)(C)(i); see also Monter, 430 F.3d
at 553. Although Hasan alleged at his merits hearing that
he was nervous when questioned by CBP agents, the IJ did not
err in finding this explanation unsatisfactory, particularly
when Hasan conceded that the responses attributed to him in
the sworn statement–including his admission of
dishonesty–were true and accurate. See Majidi, 430 F.3d at
80-81.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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