United States Court of Appeals
For the First Circuit
No. 02-2291
MOHAMED J. KRAZOUN,
Petitioner,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Desmond P. Fitzgerald and Fitzgerald & Company, LLP were on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Emily Anne Radford, Assistant Director, and Papu Sandhu, Senior
Litigation Counsel, Office of Immigration Litigation, were on brief
for respondent.
November 25, 2003
CYR, Senior Circuit Judge. Petitioner Mohamed Jamal
Krazoun appeals from a Board of Immigration Appeals (BIA) decision
which rejected his motion to reopen his deportation proceedings in
order to determine whether he is entitled to permanent resident
status based upon his September 2001 marriage to a permanent United
States resident. We affirm the BIA decision.
I
BACKGROUND
Krazoun, a native and citizen of Syria, initially entered
the United States on a student visa in 1979. In 1983, he married
a United States citizen, Magnolia Arungo-Garcia, who petitioned the
INS for a relative visa in Krazoun’s behalf. However, after she
had been subjected to verbal abuse, harassment, and threats from
Krazoun, Arungo-Garcia obtained a restraining order against
Krazoun, and withdrew her pending INS petition. One year later,
the couple divorced.
In late 1989, Krazoun met Georgia Balesteri, a United
States citizen; the two married in January 1990. In July 1990,
Balesteri likewise obtained a restraining order against Krazoun,
and the couple ceased living together. Nonetheless, in March 1991,
based upon his marriage to Balesteri, Krazoun adjusted his
immigration status to that of conditional permanent resident. See
8 U.S.C. § 1186a(a), (g)(1). Had the marriage endured for two
years (i.e., until March 1993), Krazoun and Balesteri would have
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become entitled to petition the INS to adjust Krazoun's immigration
status to that of permanent resident. See id. at § 1186a(c),
(d)(1).
In January 1993, Balesteri and Krazoun jointly submitted
a motion attesting that they were continuing to cohabit. Although
the joint motion purportedly contained Balesteri's signature, the
signature did not appear to match other samples of her handwriting.
In addition, Balesteri failed to appear for three separate INS
interviews at which she was to provide support for the joint
motion. Moreover, Krazoun himself misled INS interviewers to
believe that (i) he continued to cohabit with Balesteri, and (ii)
that Balesteri would appear at subsequent INS interviews, see 8
U.S.C. § 1186a(c)(1)(B); 8 C.F.R. § 216.4(b). Eventually, the INS
terminated the conditional resident status previously granted
Krazoun. After Balesteri finally filed for divorce from Krazoun in
May 1994, the INS initiated deportation proceedings against
Krazoun.
In November 1994, an immigration judge (IJ) ruled Krazoun
deportable. At the same time, Krazoun moved to continue the
deportation proceedings so he could obtain an INS waiver of the
requirement that he and Balesteri submit a joint petition to remove
his conditional resident status, on the basis that Krazoun had
entered into the 1990 marriage with Balesteri in “good faith,” that
it was not a sham marriage but instead had terminated for other
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reasons. See 8 U.S.C. § 1186a(c)(4) (waiver requirements). As no
divorce decree had yet been entered, however, the IJ denied the
request, whereupon Krazoun appealed to the BIA. Due to the fact
that Krazoun's divorce became final in July 1995, however, the BIA
remanded to the IJ to direct the INS to rule upon Krazoun’s waiver
application.
The INS denied the waiver application, finding (i) that
Krazoun had fraudulently concealed the fact that his 1990 marriage
to a permanent resident was a sham; and (ii) on occasion Krazoun
had stated that he lived with Balesteri until April 1993, yet at
other times he said until September 1993; whereas Balesteri’s May
1994 divorce complaint represented that the two had ceased living
together in July 1990, and Balesteri’s mother asserted that they
had never lived together at all following their marriage.
When the deportation proceedings resumed before the IJ in
January 1998, Krazoun testified that (i) Balesteri lived with him,
from time to time, until March 1993; (ii) Balesteri lived with him
from mid-to-late-1992; and (iii) even though Balesteri previously
had submitted an affidavit attesting that the two had met in “the
late winter of 1989," viz., shortly before their marriage, Krazoun
first met Balesteri in October 1988. Moreover, Krazoun's brother
testified that Krazoun and Balesteri had lived together for only
six or seven months after their marriage.
The IJ sustained the 1994 termination of Krazoun’s
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conditional residence status by the INS, as well as its denial of
Krazoun's waiver petition, then ordered that Krazoun be deported.
In addition, the IJ specifically found that Krazoun had married
both Arungo-Garcia and Balesteri for the purpose of evading the
United States immigration laws, based on the evidence that (i)
Krazoun had misled the INS by stating that his wife would appear
for the August 1993 INS interview, given that he testified at the
hearing that he had ceased living with her in April 1993; (ii)
Krazoun’s prior statements to the INS – viz., that he had lived
with Balesteri until September 1993 – were contradicted by the
dates set forth in Balesteri’s divorce action complaint (i.e.,
until July 1990) and by Krazoun’s own brother (i.e., until June-
July 1990); and (iii) both of Krazoun’s former spouses, Arungo-
Garcia and Balesteri, had obtained restraining orders against him
shortly after their respective marriages. After hearing Krazoun
testify and observing his demeanor, the IJ found that Krazoun
lacked credibility, and that he would “lie to get what he wants.”
The BIA summarily affirmed the IJ’s decision in May 2002. Krazoun
did not petition for review.
Moreover, Krazoun had married another United States
citizen, Janice Gittino, in September 2001. In June 2002, Krazoun
petitioned the BIA to reopen his case, claiming that this third
marriage was bona fide and that he and Gittino were expecting a
child in October 2002. The BIA rejected the Krazoun motion to
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reopen on two grounds. First, without regard to whether the
putative third marriage might entitle Krazoun to relief from
deportation, the BIA decided to exercise its broad discretion not
to reopen, due to Krazoun’s demonstrated history of having entered
into two previous marriages with the fraudulent intention to evade
the immigration laws. Second, the BIA noted that Krazoun had never
produced an approved visa petition – a condition precedent to the
requested relief – and had failed to adduce clear and convincing
evidence that the third marriage he entered into was bona fide.
Krazoun now petitions for review.
II
DISCUSSION
Krazoun contends that the BIA erred in not granting the
motion to reopen, in that (i) Krazoun adduced clear and convincing
evidence that his third marriage was bona fide, which included the
recent birth certificate of the couple’s first child; (ii) the
finding of fact made by the IJ in 1998 – that Krazoun’s first
marriage to Arungo-Garcia was fraudulent – was belied by the
evidence that Arungo-Garcia needed a protective restraining order
to curb the violence in their marriage relationship; and (iii) the
denial of discretionary relief by the BIA conflicts with the
legislative policy disfavoring deportations which divide families.
As we have observed previously, the strong public policy
favoring expeditious deportation proceedings plainly bespeaks
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disfavor of motions to reopen. See Fesseha v. Ashcroft, 333 F.3d
13, 20 (1st Cir. 2003). Thus, the BIA's denial of the Krazoun
motion to reopen was proper, provided either that (i) Krazoun
failed to establish the bona fides of his third marriage, entered
into after the IJ’s 1998 decision, see In re Velarde-Pacheco, 23 I.
& N. Dec. 253, 256 (BIA 2002) (requiring that alien “present[]
clear and convincing evidence indicating a strong likelihood that
[his] marriage [during pending deportation proceedings] is bona
fide”); 8 C.F.R. § 204.2(a) (same); or (ii) regardless whether he
proved that his third marriage was bona fide, the BIA, in its
discretion, denied Krazoun an adjustment of status, and that
decision was neither arbitrary and capricious nor predicated upon
a misinterpretation of applicable law. See Fesseha, 333 F.3d at
20; see also INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); 8 C.F.R.
§ 3.2(a) ("The Board has discretion to deny a motion to reopen even
if the party moving has made out a prima facie case for relief.").1
As our statement of the background facts amply
demonstrates, supra, the BIA decision denying the motion to open
must be affirmed. Krazoun plainly failed to present clear and
convincing evidence that his third marriage was bona fide.
1
The BIA also denied Krazoun’s motion because his pending
relative visa petition had not been approved, a distinct
prerequisite to a motion to reopen. See In re Velarde-Pacheco, 23
I. & N. Dec. at 256. Because we find ample alternative substantive
grounds to uphold the BIA’s decision, see infra, we bypass this
issue.
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Although he unquestionably documented the fact that he married
Gittino in June 2002, the pertinent issue before the BIA was not
whether Krazoun had married for the third time, but whether he did
so once again with the intent to evade the immigration laws and to
delay and impede imminent deportation. There can be no genuine
question that the two earlier fraudulent marriages into which
Krazoun entered, with intent to evade the immigration laws, gave
rise to a common-sense inference, as well as the legitimate
suspicion, that Krazoun's third marriage – more likely than not –
had been entered into with the same illegitimate aim.2
Moreover, Krazoun’s contention – that the bona fides of
the first marriage was demonstrated by Arungo-Garcia’s need to
obtain a restraining order to stem the violence in their marriage
relationship – may have been appropriate argumentation before the
IJ in 1998, but nothing in the present record compelled the IJ to
draw so curious a conclusion. See Oliva-Muralles v. Ashcroft, 328
F.3d 25, 27 (1st Cir. 2003) (noting that IJ’s findings of fact may
2
In addition to exposing himself to the risk of criminal
prosecution, Krazoun’s perjury would disqualify him from other
discretionary relief, such as suspension of deportation or
voluntary departure. See, e.g., Opere v. INS, 267 F.3d 10, 13-14
(1st Cir. 2001) (noting that any alien who, within seven years
before his application for suspension of deportation, has given
false testimony for the purpose of obtaining any immigration
benefit is precluded from proving “good moral character,” and thus
is ineligible for a suspension of deportation). It is not
surprising, therefore, that the Krazoun motion to reopen did not
seek reconsideration of the earlier denial of his applications for
suspension and voluntary departure.
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be set aside only if "the evidence is so compelling that no
reasonable fact-finder could fail to reach the contrary
conclusion"). Insofar as there was conflicting evidence, we would
accord the IJ’s credibility determinations great deference. See
Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999). Even these
formidable standards of review are no longer applicable, however,
inasmuch as Krazoun did not petition this court in 1998 for review
of the IJ’s factual findings. Accordingly, this matter neither
constitutes “new” material evidence, see INS v. Doherty, 502 U.S.
314, 323 (1992), nor provides a basis for the instant motion to
reopen. See Fesseha, 333 F.3d at 20.
Finally, even assuming we were to conclude that Krazoun
adduced clear and convincing evidence that the third marriage was
other than a sham, it nonetheless remains that the BIA acted well
within its discretion in bypassing such an inquiry and denying
Krazoun a discretionary adjustment of status, based exclusively
upon his history of recurrent immigration fraud. See Doherty, 502
U.S. at 322. Krazoun's prior violations were not only flagrant,
but accompanied by abusive threats to his first two spouses. See
Guan v. INS, 49 F.3d 1259, 1262-63 (7th Cir. 1995) (affirming BIA’s
discretionary denial of adjustment of status where petitioner
previously had engaged in a flagrantly fraudulent marriage, then
applied for adjustment of status based on an allegedly bona fide
second marriage).
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Moreover, the record is replete with evidence that
Krazoun repeatedly lied to conceal these violations. For instance,
he falsely testified that he had met Balesteri more than one year
prior to their marriage, whereas in fact he met Balesteri in late
1989 and married her in January 1990; he lied again when he
informed the INS that he cohabited with Balesteri until 1993,
whereas he had ceased living with her a mere six or seven months
following their marriage. Given this egregious record, and the
cogent statement of the grounds upon which the BIA rejected
Krazoun’s motion to reopen, the exercise of its discretion was
anything but arbitrary or capricious. See Fesseha, 333 F.3d at 20.
Instead, the BIA properly concluded that Krazoun simply was up to
his old tricks. See also INS v. Jong Ha Wang, 450 U.S. 139, 143
n.5 (1981) (noting that discretionary bypass is necessary to enable
INS to thwart repeated delays of actual deportation by “aliens
creative and fertile enough to continuously produce new and
material facts sufficient to establish a prima facie case [and a
right to a hearing]”).
Accordingly, the BIA decision is hereby affirmed. SO
ORDERED.
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