Syed v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1715

HASEEB SULTAN SYED,

Petitioner,

v.

JOHN ASHCROFT,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Campbell, Senior Circuit Judge, and
Lipez, Circuit Judge.

James P. Duggan for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Mary Jane Candaux, Senior Litigation Counsel, Office of Immigration
Litigation, and James E. Grimes, Attorney, Office of Immigration
Litigation, for respondent.

November 23, 2004
 LIPEZ, Circuit Judge. Petitioner Haseeb Sultan Syed

challenges a finding by an Immigration Judge, affirmed by the Board

of Immigration Appeals, that he entered into his first marriage for

the sole purpose of obtaining an immigration benefit and is thus

ineligible for an adjustment of status to that of lawful permanent

resident on the basis of his subsequent marriage. For the reasons

set forth below, we affirm.

I.

Haseeb Sultan Syed (Syed), a citizen of Pakistan, entered

the United States on February 15, 1994 with permission to remain

until February 19, 1994. He stayed in the country past this

deadline, marrying Carmen Hiraldo (Hiraldo), a United States

citizen, on May 13, 1994. Hiraldo filed a visa petition for Syed,

which was approved in October 1994, and Syed applied to adjust his

status to that of lawful permanent resident based on the visa.

Hiraldo subsequently withdrew her visa petition in

January 1995, claiming that she and Syed had never lived together.

Accordingly, on February 13, 1995, the INS1 denied Syed's petition

for an adjustment of status and instituted deportation proceedings

on the grounds that he was an alien who sought to procure

immigration benefits through fraud, 8 U.S.C. § 1251(a)(1)(A)

1
In March 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security and reorganized
as the Bureau of Immigration and Customs Enforcement ("BICE"). For
simplicity we refer to the agency throughout this opinion as the
INS.

-2-
(1994);2 8 U.S.C. § 1182(a)(6)(C)(1), and that he had remained in

the United States longer than permitted, 8 U.S.C. § 1251(a)(1)(B)

(1994).

In hearings before an Immigration Judge (IJ) between 1995

and 1997, Syed offered testimonial and documentary evidence

alleging that he and Hiraldo had enjoyed a bona fide marriage prior

to their divorce in August 1995. The IJ rejected this evidence,

concluding that Syed's testimony "lack[ed] the ring of truth." The

IJ also questioned whether photographs that Syed presented as

evidence of the marriage had been staged.3 On September 15, 1997,

the IJ issued a decision finding that Syed had remained in the

United States longer than permitted and had entered into marriage

solely to gain an immigration benefit. The IJ ordered Syed

deported and denied his request for voluntary departure. Syed then

appealed to the Board of Immigration Appeals (BIA).

While Syed's appeal to the BIA was pending, his second

wife, Fatima Gill Syed (whom he married less than one month after

his divorce from Hiraldo), filed an immediate relative visa

2
The relevant provisions of 8 U.S.C. § 1251 were transferred
to 8 U.S.C. § 1227 on September 30, 1996. Pub. L. No. 104-208, 110
Stat. 3009-598.
3
The photographs that Syed submitted included images of his
wedding to Hiraldo at City Hall in May 1994, of the couple dining
with Syed’s mother at his apartment, and of Hiraldo’s purported
birthday celebration in December 1994, also at his apartment. The
IJ viewed these pictures with skepticism, noting that Syed wore the
same clothing in pictures purportedly taken on different days.

-3-
petition on his behalf. The INS approved the visa in September

1998, and Syed subsequently requested that the BIA remand his case

to allow him to apply for an adjustment of status based on the

visa. The BIA granted Syed's motion on March 6, 2000, remanding

the case to the IJ to consider whether Syed was eligible to adjust

his status and with instructions that Syed be given a further

opportunity to present evidence that his first marriage was bona

fide.

On remand, the IJ found that Syed was ineligible for an

adjustment of status because of his previous fraudulent marriage

and that the INS should not have approved the immediate relative

visa petition because Syed had "previously . . . sought to be

accorded, an immediate relative or preference status as the spouse

of a citizen of the United States . . . by reason of a marriage

determined by the Attorney General to have been entered into for

the purpose of evading the immigration laws." 8 U.S.C. §

1154(c)(1). However, the IJ certified the question of whether

Syed's first marriage was fraudulent to the BIA pursuant to Syed's

previously filed appeal.

The BIA affirmed both the IJ's September 1997 conclusion

that Syed's first marriage was fraudulent and the IJ's December

2000 conclusion that Syed was ineligible for a status adjustment on

this basis.

-4-
 Syed now appeals. He does not dispute that a fraudulent

first marriage would render him ineligible for an adjustment of

status. Rather, his appeal is based solely on the claim that the

IJ and BIA erroneously concluded that he entered into his first

marriage for the purpose of obtaining immigration benefits.

II.

Our review of factual findings and credibility

determinations by an IJ is deferential. Mendes v. INS, 197 F.3d 6,

13 (1st Cir. 1999); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir.

1990). We will uphold the BIA's affirmance of an IJ's decision so

long as it is "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992) (internal quotations and

citation omitted). In other words, to prevail, Syed must

demonstrate that the evidence he presented was “‘so compelling that

no reasonable fact finder could fail’ to find that he had a bona

fide marriage.” Mendes, 197 F.3d at 13 (quoting Elias-Zacarias,

502 U.S. at 483-84).

III.

The IJ's finding that Syed's first marriage was not bona

fide rested on multiple grounds: that documents submitted on Syed’s

behalf were fraudulent, that Syed's own testimony was inconsistent

and not credible, and that photographs Syed submitted appeared to

have been staged. Syed argues first that these conclusions were

-5-
erroneous, and second, that the judge incorrectly considered

Hiraldo and Syed’s subsequent divorce in assessing whether the

marriage was fraudulent. We address each claim in turn.

Syed asserts that his marriage to Hiraldo was “based upon

mutual attraction and romantic love,” not immigration

considerations. In support of this position, he reiterates that he

“knew the particulars of [Hiraldo’s] life” and refers to

photographs that document their life together. The IJ did not

consider these averments to be sufficient evidence of a bona fide

marriage, particularly in view of the court’s adverse credibility

determination and its conclusion that the photographs were staged.

Syed challenges both assessments, arguing that the IJ improperly

dismissed the photographs as “not convincing” and “did not state

any reasons for his determination that [Syed’s] testimony was not

credible.” We are unpersuaded on both counts.

“Because the immigration judge is in the best position to

evaluate an alien’s testimony, his or her credibility

determinations are to be given much weight.” Estrada v. INS, 775

F.2d 1018, 1021 (9th Cir. 1985)(internal quotation marks omitted).

Thus, we defer to an IJ's credibility finding so long as the IJ

"offer[s] a specific, cogent reason for [his] disbelief." Mihaylov

v. Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004)(citing Qin v.

Ashcroft, 360 F.3d 302, 306 (1st Cir. 2004)). Without such an

explanation, we would be unable to conduct a proper review of the

-6-
IJ's decision. Gailius v. INS, 147 F.3d 34, 46-47 (1st Cir. 1998);

see also Mihaylov, 379 F.3d at 20-21.

Here, despite Syed’s protestations to the contrary, the

IJ did offer a specific reason for the adverse credibility finding.

Syed’s status adjustment application included a letter, purportedly

signed by a store manager, indicating that Hiraldo worked at a 7-

Eleven store adjacent to Syed's apartment during their marriage.

Syed asserted in a hearing before the IJ that Hiraldo submitted the

letter without his knowledge. However, when Hiraldo withdrew the

visa petition, she stated that she had never seen the letter; a

witness also testified during the immigration proceedings that

Hiraldo was unemployed while she and Syed were married. Based on

this evidence, the IJ concluded that the letter was fraudulent and

that Syed's disavowal of any responsibility for it undermined his

credibility. Syed has not directly addressed this finding on

appeal.

Although the IJ did not specify other bases for the

credibility determination, it may well have been informed by the

vagueness and inconsistency in Syed’s testimony. The record

reflects that Syed was unable to recall where he had proposed to

Hiraldo and that he gave varying accounts of when they moved in

together. In fact, the IJ noted that while Syed claimed that he

and Hiraldo had lived together, Hiraldo asserted when she withdrew

the visa petition that they had never lived together. Again, such

-7-
contradictory claims provide substantial evidence for the IJ’s

adverse credibility determination.

Syed also contests the IJ’s finding that the photographs

were not persuasive evidence of a bona fide marriage. Such a

challenge, standing alone, is not a sufficient basis upon which to

disturb the IJ’s decision. The IJ noted that Syed wore the same

clothes in several of the pictures purportedly taken on different

days. The record also reflects that Syed’s mother and Hiraldo were

also wearing the same clothing, and appeared to be eating the same

food, in multiple pictures that Syed claimed were taken on

different occasions. Together, these factors provided substantial

evidence for the IJ’s conclusion that “[t]he photographs in

themselves are not convincing evidence of the viability of the

marriage.”

Finally, Syed argues that the IJ improperly considered

the fact that the marriage had dissolved after Hiraldo filed the

visa petition. This position is based on the IJ’s statement that

“[t]here is no . . . evidence presented . . . to establish an

ongoing conjugal relationship . . . .”

Syed correctly notes that subsequent separation does not,

by itself, render a marriage invalid from its inception. See Bark

v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975) (“The inference that

the parties never intended a bona fide marriage from proof of

separation is arbitrary unless we are reasonably assured that it is

-8-
more probable than not that couples who separate after marriage

never intended to live together.”); see also Dabaghian v.

Civiletti, 607 F.2d 868 (9th Cir. 1979) (similar). But the IJ’s

decision did not state otherwise. Although the reference to an

“ongoing conjugal relationship” is potentially misleading, we do

not read it to mean that Syed had to establish a presently ongoing

relationship. Rather, viewed in context, “ongoing” clearly

referred to the period of time when Syed contends that he and

Hiraldo enjoyed a bona fide marriage. There is no evidence that

the IJ considered the couple’s separation in assessing the bona

fides of their marriage, aside from Hiraldo’s subsequent assertion

that, in fact, she and Syed had never lived together at all. This

is not the type of impermissible inference from separation

addressed in Bark; Hiraldo's explicit statement undermines both the

validity of the marriage from its inception and the credibility of

Syed’s testimony to the contrary.

Affirmed.

-9-