United States Court of Appeals For the First Circuit

No. 04-1288

MICHAEL OLUSEAN FALAE, A/K/A VINCENT OLANREWAJU ADEYEMI,

Petitioner,

v.

ALBERTO R. GONZÁLES,* ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Ronald W. Thompson Jr. on brief for petitioner. Peter Keisler, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, and Jennifer Levings, Attorney, Office of Immigration Litigation, on brief for respondent.

June 9, 2005

__________ *Alberto R. Gonzáles was sworn in as United States Attorney General on February 3, 2005. We have therefore substituted Attorney General Gonzáles for his predecessor in office as respondent in this matter. See Fed. R. App. P. 43(c)(2). SELYA, Circuit Judge. Petitioner Michael Olusean Falae,

a Nigerian national, seeks review of a final order of the Board of

Immigration Appeals (BIA) denying his motion to remand proceedings

to an immigration judge (IJ) in order to allow him to apply for

adjustment of his immigration status. The proposed adjustment was

based on the combined force of (i) the approval of a so-called I-

140 visa application sponsored by his employer, see

, and (ii) his marriage to a United States citizen, see

§

1182(i)(1). The petitioner argues that these two events qualify

him for a waiver of inadmissability and an adjustment of status

under the Immigration and Nationality Act (INA). Discerning no

abuse of discretion, we deny the petition for review.

The petitioner arrived in the United States in April of

1995 armed with a tourist visa that apparently authorized him to

remain for six months. We say "apparently" because both the visa

and the petitioner's passport had been issued in the name of one

Vincent Olanrewaju Adeyemi. The petitioner initially lived with

his fiancée, Stella Olujoke, a non-citizen whom he had known in

Nigeria. He did not leave after six months and, in March of 1996,

he jilted Olujoke and married a United States citizen.1

1 During the hearings before the immigration court, the petitioner testified that he could not remember the last name of his former spouse. He referred to her throughout as "April," and we follow suit.

-2- In July of 1997, the petitioner divorced April without

ever having lived with her. Nine days later, he married his once

and former fiancée, Olujoke, who then amended her pending

application for asylum and related relief to include the

petitioner. The petitioner and Olujoke were interviewed by an

asylum officer in May of 1999. That interview resulted in an

unfavorable recommendation and the institution of removal

proceedings. The notice to appear was made returnable to the

immigration court in Boston.

At the start, the Immigration and Naturalization Service

(INS) charged the petitioner with illegal entry into the United

States in violation of

(a)(6)(A)(i).2 Subsequently,

the INS lodged additional charges of inadmissability and

deportability, under

(a)(1)(A), based on the use of

fraudulent documents to gain entry into the United States. The

same sort of charges were lodged against Olujoke. While the two

cases were consolidated for some period of time, that order was

rescinded after the petitioner and Olujoke divorced. Olujoke's

case is pending before us (Appeal No. 04-1252) and will be

addressed in a separate opinion. In this opinion, we chronicle

2 The Homeland Security Act of 2002,

,

, 2205 (codified as amended at

(a)), eliminated the INS and transferred its duties to the Department of Homeland Security. See Lattab v. Ashcroft,

, 13 n.2 (1st Cir. 2004). For simplicity's sake, we continue to refer to the INS throughout this opinion.

-3- only those facts and proceedings that relate directly to the

petitioner.

To make a tedious tale tolerably terse, the petitioner

conceded removability and moved to amend his pleadings to permit an

application for adjustment of status based on the approval of an I-

140 visa application filed on the petitioner's behalf by his

employer, the Providence School Department. The approval of that

application resulted in his classification as a skilled worker and,

thus, afforded a potential avenue to allow him to remain in the

United States. See

(b)(3)(A) (establishing a

special visa category for skilled workers who obtain labor

certification).

In October of 2000, the IJ found that the petitioner's

fraudulent use of documents to gain entry into the United States

debarred him from an adjustment of status, notwithstanding the

approved I-140 application. The IJ further found that the

petitioner lacked credibility. She based this credibility

determination on his demeanor, myriad inconsistencies in his trial

testimony, and questionable documentation submitted on his behalf

(including a bogus yearbook photograph). The IJ found

"particularly troubling" the petitioner's inability to recall any

details about his first marriage (including his wife's last name)

and the fact that the petitioner and his first wife never lived

together. Although the IJ declined to make a specific finding that

-4- the union was entered into for the purpose of evading United States

immigration laws, see

(c), she thought it probable

that the marriage was a sham (she termed it a "green card"

marriage). She also deemed it "curious" that the petitioner's

second marriage "occurred a mere nine days after his divorce became

final."

Based upon these and other findings, the IJ concluded

that the petitioner had not shown past persecution in Nigeria by

credible testimony. Consequently, he had not established

eligibility for asylum, withholding of removal, or protection under

the Convention Against Torture (CAT). Furthermore, the IJ declared

the petitioner ineligible for a waiver of inadmissibility under

(i) because he could not identify any qualifying

citizen relatives in the United States. Accordingly, the IJ

pretermitted the application for adjustment of status, ordered the

petitioner removed to Nigeria, and denied his request for voluntary

departure.

The petitioner filed a timely appeal with the BIA and, a

month later, divorced Olujoke. Three months thereafter, he

married Sandra Hannah, a United States citizen. He then filed a

motion to remand so that he might seek adjustment of status based

on the combination of (i) the approved I-140 visa application

submitted by his employer and (ii) his marriage to a Untied States

citizen. As part of his proffer, the petitioner asseverated that

-5- deportation to Nigeria would impose extreme hardship upon his new

bride, who allegedly suffered from a kaleidoscopic array of medical

and psychological disorders.

In January of 2004, the BIA upheld the IJ's

determinations and rejected the petitioner's merits appeal. It

simultaneously denied his motion to remand. On that score, the BIA

noted that the petitioner had married his new wife "a mere 7

months" after he was ordered removed by the IJ and explained that

the petitioner's "lack of credibility at his hearing, his prior use

of fraudulent documents, his previous marital history and the

timing of his current marriage" argued persuasively against an

affirmative exercise of its discretion to reopen the proceedings.

This petition for judicial review followed.

The petitioner seeks judicial review of the BIA's denial

of his motion to remand — no more and no less.3 In that motion, he

asked the BIA to remand the matter to the IJ in order to allow him

to pursue an adjustment of status. Neither the INA nor the BIA's

rules of practice recognize motions to remand as such. Here,

however, the motion to remand was plainly in the nature of a motion

to reopen the proceedings before the IJ (the IJ originally adjudged

him ineligible for relief in part because he lacked a qualifying

citizen relative; once he had married a United States citizen, he

3 Given the circumscribed nature of the relief requested, we need not address the BIA's affirmance of the decision to deny asylum, withholding of removal, and protection under the CAT.

-6- sought to present fresh evidence of his newfound eligibility for an

adjustment of status). The BIA, therefore, properly treated the

motion to remand as a motion to reopen. See In re Coelho,

(BIA 1992). So do we.

Motions to reopen are disfavored in immigration practice

because of the compelling public interests in finality and the

expeditious processing of proceedings. INS v. Abudu,

(1988); Fesseha v. Ashcroft,

(1st Cir. 2003).

The granting or denial of such a motion is discretionary. See INS

v. Doherty,

(1992). At a bare minimum, the

movant must make a showing of prima facie eligibility for the

relief that he seeks. See, e.g., Afful v. Ashcroft,

(1st Cir. 2004). He also must show that the evidence sought to be

introduced on remand is material and that it was not previously

available. See

(c)(1); see also Fesseha,

. Even if he satisfies these threshold conditions, he is not

home free; he still must persuade the BIA to exercise its

discretion affirmatively and order the case reopened. See

(a); see also Abudu,

.

We review the BIA's denial of a motion to reopen for

abuse of discretion. See Jupiter v. Ashcroft,

(1st Cir. 2005). This means that we will interfere with the BIA's

disposition of such a motion only if the petitioner can establish

that the BIA made an error of law or acted in a manner that is

-7- fairly characterizable as arbitrary or capricious. See Carter v.

INS,

(1st Cir. 1996); see also Henry v. INS,

(1st Cir. 1996) (explaining that the BIA may abuse its

discretion by "neglecting to consider a significant factor that

appropriately bears on the discretionary decision, by attaching

weight to a factor that does not appropriately bear on the

decision, or by assaying all the proper factors and no improper

ones, but nonetheless making a clear judgmental error in weighing

them"). In conducting this deferential review, we must keep in

mind that the usual reasons for ceding deference to agency

decisionmaking on similar motions in other administrative contexts

have special force in the immigration context. See Abudu,

.

We assume, for argument's sake, that the petitioner made

the required showing of prima facie eligibility for an adjustment

of status. His marriage to a United States citizen, if bona fide,

rendered him presumptively eligible for such an adjustment. See

(i) (authorizing a waiver of inadmissibility for fraud

or willful misrepresentation if the Attorney General determines

that the alien's removal from the United States would result in

extreme hardship to the alien's citizen spouse). Moreover,

evidence of such a union is material to the relief sought (i.e., it

has the potential to influence the outcome of the application for

an adjustment of status) and, inasmuch as the nuptials occurred

-8- after the IJ's decision, that evidence was unavailable during the

original hearings.

Given these assumptions, this case turns on the BIA's

negative exercise of its discretion. We discern no abuse.

Although the BIA did not make a specific "sham marriage" finding,

it made pellucid its grave doubts as to the suspicious timing of

the petitioner's marriage to Hannah and the genuineness of that

marriage. It then cited, as aggravating factors, the petitioner's

persistent use of fraudulent documents, his checkered marital

history, and his overall lack of credibility.

We view these facts as relevant and the BIA's reliance on

them as reasonable. The key is the adverse credibility finding —

a finding that derives ample support from the record. The

petitioner's actions showed quite clearly that he had no

compunctions about using bogus documentation (and, thus, about

dissembling in an effort to evade the immigration laws). His

course of conduct gave rise to a plausible inference — an inference

that the IJ chose to draw — that he viewed marriage less as a

sacrament and more as a tool for ensuring continued residency in

the United States. And, finally, his demeanor on the witness stand

and his evasiveness in the face of close questioning were, as the

IJ noted, telling indicia of a lack of forthrightness. Perhaps the

most glaring examples are his convenient memory loss when queried

-9- about his first marriage and his attempts to "coach" Olujoke when

she testified in his behalf.

The short of it is that the adverse credibility finding

was fully supported. That finding undermined not only the

petitioner's case in chief but also his motion to remand. There

was, therefore, a sound and wholly rational predicate for the BIA's

negative exercise of its discretion. See Krazoun v. Ashcroft,

(1st Cir. 2003).

In arguing for an opposite conclusion, the petitioner

makes two points that warrant brief rebuttal. First, he invites us

to hold that this case is controlled by In re Velarde-Pacheco,

(BIA 2002), in which the BIA granted a motion to

reopen proceedings pending adjudication of an I-130 visa

application. We decline the invitation because the two cases are

not fair congeners. In Velarde-Pacheco, unlike in this case, the

petitioner (whom the BIA deemed credible) had established the bona

fides of his marriage to a United States citizen by clear and

convincing evidence. See

. Even then, the BIA

emphasized that the grant of relief was entirely a matter of

discretion.

Second, the petitioner claims that the BIA overlooked

factors that speak in favor of granting him relief. These include

his record of steady employment, his lack of a criminal record, the

positive impact he has had on Hannah's life, and his acquiescent

-10- participation in immigration proceedings. We readily agree that

these are mitigating factors, but it is sheer conjecture to say

that the BIA overlooked them. The petitioner's remonstrance, then,

reduces to a claim that the BIA attached insufficient weight to

these mitigating factors.

We reject that claim. The BIA, in evaluating a motion to

reopen, must consider the record as a whole. Zhao v. U.S. Dep't of

Justice,

, 97 (2d Cir. 2001). Thus, its exercise of

discretion typically will entail the weighing of multiple factors,

not all of which point in the same direction. See Chen v. INS,

(1st Cir. 1996). Here, the mitigating factors marshaled

by the petitioner simply do not, either as a matter of law or as a

matter of logic, so overbalance the adverse factors emphasized by

the BIA as to require a finding of misused discretion. See Henry,

(stating that a finding of abuse of discretion, under

such circumstances, requires a showing that the BIA made "a clear

judgmental error in weighing [competing factors]") (emphasis

supplied).

We need go no further. On this record, the BIA acted

well within the realm of its discretion in rejecting the

petitioner's motion to remand the proceedings.

The petition for review is denied.

-11-