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Ali v. United States

United States Court of Appeals, First Circuit

February 28, 2017

KAMAL ALI, ISRAA HASSAN, Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA; JEFFERSON B. SESSIONS, III, Attorney General of the United States; JOHN F. KELLY, Secretary of the U.S. Department of Homeland Security; LORI SCIALABBA, Acting Director of U.S. Citizenship and Immigration Services; ANDREA ROGERS, Field Office Director of the U.S. Citizenship and Immigration Services Manchester Field Office, [*] Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Andrea K. Johnstone, U.S. Magistrate Judge]

          Nathan P. Warecki, with whom Nixon Peabody LLP, Anna Barbara Hantz, and Sheehan Phinney Bass & Green, PA were on brief, for appellants.

          Terry L. Ollila, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief, for appellees.

          Before Lynch, Thompson, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         Israa Hassan, a U.S. citizen, filed an I-130 petition seeking permanent resident status for her noncitizen husband, Kamal Ali. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.2(a). After interviewing Ali and Hassan, U.S. Citizenship and Immigration Services ("USCIS") issued a Notice of Intent to Deny ("NOID") the petition because of the agency's determination that Ali's prior marriage to Priscilla Lewis was "entered into for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c). Ali and Hassan submitted additional evidence in response to the NOID, including affidavits from Ali and Lewis, aiming to prove that Ali's first marriage had not been fraudulent. Not persuaded to change its decision, USCIS denied the petition.

         On appeal from an adverse judgment against them in their lawsuit challenging that denial, Ali and Hassan argue that USCIS did not afford them sufficient procedural due process, required by the Constitution, in denying the I-130 petition. Even if we assume arguendo that the plaintiffs are entitled to some form of constitutional due process from an interest in Ali having permanent resident status through the petition, the district court properly held that the plaintiffs have not shown how the additional process they seek would have made any difference to the outcome. See Ali v. United States, No. 15-cv-201-AJ, 2016 WL 3190190, at *7, *8 (D.N.H. June 7, 2016). We affirm the district court's grant of summary judgment in the government's favor.

         I.

         Ali, a native of Sudan, entered the United States in 1988 on a student visa to attend Long Island University ("LIU"). He never enrolled and was living in Boston by 1989. In Boston he met Priscilla Lewis, a U.S. citizen, and they married in 1993.

         On November 2, 1995, Ali applied for adjustment of status under the Diversity Immigrant Visa program. See 8 U.S.C. § 1153(c). When the Immigration and Naturalization Service ("INS")[1] requested an original copy of the photocopied and translated high school diploma he had submitted, Ali provided an ostensible original that was inconsistent with the photocopy. The INS concluded that the purported original diploma "c[ould] not be the original of the photocopy." When the INS again requested a true original, Ali's counsel responded that both versions of the document contained the same information and that "there [wa]s no original to the photocopy that was originally submitted." The INS concluded that Ali had failed to submit a valid original diploma. See 8 C.F.R. § 103.2(b)(5). On November 19, 1996, the INS denied Ali's petition to adjust status, citing the false documentation.

         After Ali's first failed effort to adjust his status, Lewis filed an I-130 petition in October 1997 on Ali's behalf. The petition, signed by Lewis and Ali, stated that the couple had lived together in Manchester, New Hampshire since August 1997. Before the couple's scheduled interview with the INS in January 1998, however, Ali contacted INS officials and asked to reschedule, stating that he and Lewis had separated and wanted time to work toward a reconciliation. The interview was postponed two more times after that. At a scheduled meeting in June 1998, Ali appeared with a woman who claimed to be Lewis, but she had brought no valid photo identification despite prior instructions to do so.

         An INS investigation into Ali's and Lewis' marriage found additional information that cast doubt on the marriage's bona fides. For example, the investigators obtained Massachusetts welfare records that showed that Lewis had been receiving welfare checks at the same Boston address since 1985. Other records stated that Ali had lived at several different addresses in Massachusetts and New Hampshire between 1993 and 1998. No records linked Lewis to any address in New Hampshire.

         In September 1999, two INS agents interviewed Lewis in Boston, finding her at the street address to which Massachusetts had been sending her welfare checks. During the interview, as described by a report signed by one of the INS agents, Lewis stated that Ali had offered her $1000 to marry him so that he could obtain a green card -- that is, permanent resident status. She added that after she and Ali separated, in 1998, Ali had asked her to give the immigration authorities the false impression that the two of them were still living together.

         After the interview, Lewis withdrew the I-130 petition that she had filed on Ali's behalf. Her explanation of the withdrawal, which was handwritten and signed by her, reiterated that Ali had asked her to lie about their relationship and had offered her $1000 to marry him. The plaintiffs have not disputed that Lewis signed the statement, and the INS agent verified that Lewis had signed. The statement is handwritten, in the ...


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