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.
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(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.
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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.
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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
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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
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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
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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
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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.
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