Appellate Case: 21-9514 Document: 010110617932 Date Filed: 12/13/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 13, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
FOLARIN HENRY ALABI,
Petitioner,
v. No. 21-9514
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges.
_________________________________
Folarin Henry Alabi, a native and citizen of Nigeria, petitions for review of the
Board of Immigration Appeals’ (BIA) decision that affirmed the immigration judge’s (IJ)
discretionary denial of his request for a waiver of the joint-filing requirement to remove
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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the conditions of his status as a permanent resident under 8 U.S.C. § 1186a(c)(4)(A). We
dismiss the petition for lack of jurisdiction.
I. BACKGROUND
Mr. Alabi entered the United States with a student visa in February 2008. He
married Kimberly Straughter, a U.S. citizen, in March 2009. On August 6, 2010,
Mr. Alabi adjusted his status to that of a conditional permanent resident for a two-year
period under 8 U.S.C. § 1186a(a)(1). In June 2012, Mr. Alabi and Ms. Straughter filed
with the United States Citizenship and Immigration Services (USCIS), a joint petition to
remove the conditions of his residence under 8 U.S.C. § 1186a(c)(1).
Ms. Straughter, however, failed to appear for her scheduled interview with USCIS
in May 2013; instead, several weeks later, she sent a letter withdrawing her support for
the petition. Specifically, Ms. Straughter represented that she and Mr. Alabi “had not
been living as husband and wife since October 2010,” and she “filed for divorce [in]
August 2011.” Admin. R. at 1065 (capitalization altered). She further stated that
Mr. Alabi “married [her] for imm[i]gration only and he refuse[d] to divorce [her] because
of it.” Id. (capitalization altered). She believed “he also may have signed [her] name on
the final paperwork.” Id. (capitalization altered). The record reflects that their divorce
was finalized in July 2013. On October 7, 2013, USCIS issued Mr. Alabi a “Notice of
Termination of Conditional Residence” on the grounds that he no longer had a properly
filed joint petition as required under 8 C.F.R. § 216.4(a)(6). Admin. R. at 1091.
Additional problems for Mr. Alabi arose in November 2015, when he was charged
in a two-count federal indictment with conspiracy to commit marriage fraud and aiding
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and abetting marriage fraud. Shortly thereafter, Immigration and Customs Enforcement
commenced removal proceedings against Mr. Alabi, who in turn filed a new petition with
USCIS under § 1186a(c)(4) requesting a waiver of the joint-filing requirement on the
grounds of “extreme hardship” and “good faith.”1
In April 2017, while his application for a waiver was pending, Mr. Alabi was
convicted by a jury on both counts in the indictment and sentenced to eighteen months’
imprisonment. Following the jury’s verdict, the United States Attorney’s Office issued a
press release describing Mr. Alabi as “the leader of the conspiracy.” Admin. R. at 1063.
In August, USCIS denied the waiver because Mr. Alabi failed to establish a “good faith”
marriage.
Mr. Alabi sought review of USCIS’s decision in the removal proceedings. See
8 C.F.R. § 1216.5(f) (“[T]he alien may seek review of such decision in removal
proceedings.”). To that end, in November 2018, he testified before the IJ about the
circumstances of his marriage. Briefly summarized, Mr. Alabi denied marrying
Ms. Straughter for immigration purposes. He also denied forging Mr. Straughter’s
signature on the joint petition or having any knowledge that she had filed for divorce. He
further insisted his convictions related to marriage fraud were based on “false
accusation[s].” Admin. R. at 969.
1
There are four bases for waiver of the joint-filing requirement, including
“extreme hardship” under § 1186a(c)(4)(A), which requires the applicant to show his
or her removal would result in “extreme hardship,” and “good faith” under
§ 1186a(c)(4)(B), which requires the applicant to show he or she entered into the
marriage in “good faith.”
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At the conclusion of the hearing, the IJ found Mr. Alabi failed to prove his
entitlement to a “good faith” waiver, citing: (1) his forgery of Ms. Straughter’s signature
on the joint petition; (2) his convictions related to marriage fraud and his role as
ringleader; and (3) numerous contradictions between his testimony and the documentary
evidence.
Mr. Alabi appealed to the BIA, arguing, among other things, the IJ erred by
requiring him to show a “good faith” marriage before considering an “extreme hardship”
waiver. In May 2019, the BIA issued its first decision, which affirmed the IJ’s finding of
no “good faith” marriage but agreed with Mr. Alabi that the IJ should have also evaluated
the “extreme hardship” waiver.
On remand, the parties disagreed whether the IJ had jurisdiction to adjudicate the
“extreme hardship” waiver because USCIS had not yet ruled on the issue. The parties
further disagreed on the relevant time period in which to assess “extreme hardship.” For
its part, the government argued the relevant period was from August 6, 2010, to August
6, 2012, under § 1186a(c)(4), which provides “[i]n determining extreme hardship, the
Secretary of Homeland Security shall consider circumstances occurring only during the
period that the [noncitizen] was admitted for permanent residence on a conditional basis.”
According to the government, circumstances occurring outside the relevant two-year
period when Mr. Alabi was admitted for conditional residency, such as hardship to
Mr. Alabi’s son Daniel, who was born in June 2013, could not be considered. Mr. Alabi,
on the other hand, argued the relevant period ran from August 6, 2010, to October 7,
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2013, when USCIS issued its notice terminating his conditional residency, and therefore
included hardship to Daniel.
Mr. Alabi testified he plans to take Daniel (and another son born in 2016) with
him to Nigeria if he is removed. Daniel is autistic and has speech and developmental
problems that require him to attend a special school. He cannot dress himself and needs
constant care, including help going to the bathroom. According to Mr. Alabi, Daniel
would endure extreme hardship in Nigeria because there are no suitable schools and
limited medical care. The documentary evidence included, among other things, Daniel’s
medical records (including information about his ongoing therapy) and articles discussing
challenges for children with disabilities in Nigeria. Mr. Alabi added he would face his
own extreme hardship for several reasons, including: (1) the lack of any assets in
Nigeria; (2) difficulty finding employment; and (3) possible danger from the terrorist
organization Boko Haram.
The IJ determined he had jurisdiction and ruled the relevant time period was
August 6, 2010, to August 6, 2012, which excluded any hardship to Daniel. The IJ
assumed Mr. Alabi was credible but found no “extreme hardship.” In the alternative, the
IJ denied a waiver on discretionary grounds.
Mr. Alabi appealed to the BIA raising two arguments: (1) the IJ lacked
jurisdiction to adjudicate the “extreme hardship” waiver because USCIS had not yet ruled
on the issue and (2) the IJ erred in limiting the relevant time period for assessing hardship
from August 6, 2010, to August 6, 2012. The BIA issued a second decision in which it
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agreed the IJ lacked jurisdiction to adjudicate the “extreme hardship” waiver and ordered
the proceedings be continued pending a decision from USCIS.
USCIS eventually decided the case and ruled the relevant time period for
evaluating hardship ended on August 6, 2012, and as a result, Mr. Alabi failed to
establish “extreme hardship.” In the alternative, it considered hardship to Daniel and
denied a waiver in the exercise of its discretion. Mr. Alabi sought review with the IJ.2
In a written decision, the IJ reaffirmed his ruling that the relevant time period for
assessing hardship ended on August 6, 2012, and Mr. Alabi failed to establish “extreme
hardship” based on circumstances occurring this period. In the alternative, the IJ found
that “even if [Mr. Alabi] had established the necessary level of extreme hardship for
the . . . waiver under [§ 1186a(c)(4)(A)] . . . and even if hardship to his two children may
be factored, the [c]ourt nonetheless denies his . . . extreme hardship waiver as a matter of
discretion.” Admin. R. at 138. In reaching this determination, the IJ accepted as credible
Mr. Alabi’s testimony concerning Daniel’s medical condition and special needs but found
“[t]he additional presumed hardships to his two children, one of whom has a
developmental disability and is on the autism spectrum, would still be insufficient for
th[e] [c]ourt to find that the balance of the equities would tip in his favor.” Id. at 137. In
particular, the IJ cited Mr. Alabi’s: (1) “severe, serious, and recent” convictions for
conspiracy to commit marriage fraud and aiding and abetting marriage fraud; (2) role as
ringleader of the conspiracy; (3) sham marriage; (4) forgery of Ms. Straughter’s signature
2
On review to the IJ, Mr. Alabi abandoned his request for a “good faith”
waiver.
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on the joint petition; and (5) other material misrepresentations in trying to gain
immigration benefits. Id.
Mr. Alabi appealed to the BIA. The BIA did not address the IJ’s ruling on the
relevant time period or his hardship determination because it agreed with the IJ that “even
assuming that the conditional residence period was extended and the extreme hardship
standard was met, [Mr. Alabi] did not merit relief in the exercise of discretion in light of
his criminal record.” Id. at 3.
Citing Matter of Marin, 16 I. & N. Dec. 581, 584 (B.I.A. 1978), the BIA explained
in order “[t]o determine whether [Mr. Alabi] merits . . . relief [as a matter of] discretion,
we weigh the adverse factors evidencing his undesirability as a permanent resident
against the social and humane considerations presented in his behalf and ask whether, on
balance, [Mr. Alabi’s] continued presence in the United States would be in the best
interests of this country.” Admin. R. at 4. The BIA ultimately determined that the IJ
“correctly concluded that [Mr. Alabi’s] significant negative factors militate against a
favorable exercise of discretion in this case” and dismissed the appeal. Id. This petition
for review followed.
II. ANALYSIS
In its decision, the BIA assumed Mr. Alabi was eligible for an “extreme hardship”
waiver but did not merit the waiver in the exercise of discretion. This is precisely the
type of discretionary decision the courts lack jurisdiction to review. See Iliev v. Holder,
613 F.3d 1019, 1023 (10th Cir. 2010) (“We lack jurisdiction to review the decision to
deny [an extreme hardship waiver] where eligibility for the waiver has been established
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but the agency nevertheless has exercised its discretion to deny relief.” (brackets and
internal quotation marks omitted)); see also 8 U.S.C. § 1252(a)(2)(B)(ii) (“[N]o court
shall have jurisdiction to review . . . decision[s] or action[s] of the Attorney General or
the Secretary of Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the Secretary of Homeland
Security.”).
Specifically, “the question whether to remove the conditional basis of the
permanent resident status of a[n] . . . alien who [is eligible for one of the four waivers
described in § 1186a(c)(4)(A)-(D)], is among those decisions entrusted by Congress to
the Attorney General’s discretion.” Iliev, 613 F.3d at 1022 (internal quotation marks
omitted). Further, § 1186a(c)(4) provides that “[t]he determination of what evidence is
credible and the weight to be given that evidence shall be within the sole discretion of the
Secretary of Homeland Security.”
Notwithstanding the jurisdictional bar that prevents this court from reviewing the
agency’s discretionary decisions, we are not “preclud[ed] [from] review[ing] . . .
constitutional claims or questions of law raised upon a petition for review,” 8 U.S.C.
§ 1252(a)(2)(D), which are “review[ed] . . . de novo.” Iliev, 613 F.3d at 1025. However,
we reject Mr. Alabi’s attempt to raise a question of law by arguing an issue neither
decided by the BIA nor necessary to the resolution of the case: whether the IJ erred in
holding the relevant time period of conditional residence for which extreme hardship may
be assessed ended on August 6, 2012. To be sure, in an appropriate case this could raise
a question of law; however, it has no bearing on how Mr. Alabi’s case was ultimately
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resolved and therefore need not be addressed. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (per curiam) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”);
Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will not undertake to decide
issues that do not affect the outcome of a dispute.”).
For his final argument, Mr. Alabi asserts the IJ’s exclusion of hardship to Daniel
“affected the discretionary determination by foreclosing consideration of the hardship to
[his] special needs U.S. citizen child.” Pet’r’s Opening Br. at 23. This argument finds no
support in the record. To the contrary, the IJ considered the testimony and documentary
evidence concerning Daniel’s condition and special needs in balancing hardship against
the factors weighing against a favorable exercise of discretion. We decline Mr. Alabi’s
invitation to reweigh the evidence, which is not “within our jurisdictional ken,” Illiev,
613 F.3d at 1024.
III. CONCLUSION
The petition for review is dismissed for lack of jurisdiction.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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