Maxwell O. Abuya Petitioner
Jefferson B. Sessions, III, Attorney General Respondent
Submitted: June 6, 2017
for Review of an Order of the Board of Immigration Appeals
LOKEN, MURPHY, and MELLOY, Circuit Judges.
Onchonga Abuya, a citizen of Kenya, was admitted to the
United States in December 2005 as a nonimmigrant student. He
married April Maldonado, a United States citizen, in October
2006 and dropped out of school in 2007. In July 2007,
Maldonado filed a Petition for Alien Relative, Form I-130,
and Abuya filed an Application to Adjust Status, Form I-485.
In August 2012, the Department of Homeland Security
("DHS") commenced removal proceedings, charging
that Abuya (i) failed to maintain his status as a
nonimmigrant student, see 8 U.S.C. §
1227(a)(1)(C)(i); and (ii) entered into a fraudulent marriage
with the purpose of procuring adjustment of status,
see §§ 1182(a)(6)(C)(i), and
1227(a)(1)(A). Abuya conceded the first charge but contested
the second. After an evidentiary hearing, the immigration
judge ("IJ") sustained both charges, and the Board
of Immigration Appeals ("BIA") affirmed. Abuya
petitions for review, arguing DHS failed to prove a
fraudulent or sham marriage. The finding that Abuya entered
into a marriage for the purpose of evading the immigration
laws results in a lifetime bar on the approval of petitions
for immigrant status on his behalf. See 8 U.S.C.
§ 1154(c). Therefore, we have jurisdiction to review his
challenge to removability under § 1227(a)(1)(A), despite
his concession that he is removable on another ground.
See Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir.
2008); Pauliukoniene v. Holder, 496 Fed.Appx. 657,
659-60 (7th Cir. 2012) (unpublished). We deny the petition
removal proceeding, DHS has the burden to prove by
"clear and convincing evidence" that an alien
admitted to the United States is removable. 8 U.S.C. §
1229a(c)(3)(A). An alien is removable under §
1227(a)(1)(A) if he was inadmissible "at the time of
entry or adjustment of status." An alien is inadmissible
under § 1182(a)(6)(C)(i) if, "by fraud or willfully
misrepresenting a material fact, [he sought] to procure . . .
or has procured a visa, other documentation, or admission
into the United States or other [immigration] benefit."
Fraudulently misrepresenting that a marriage is bona fide to
procure adjustment of status is a basis for removability.
See Vladimirov v. Lynch, 805 F.3d 955, 961 (10th
Cir. 2015). To prove Abuya was inadmissible on this ground,
DHS must prove that Abuya and Maldonado did not intend
"to establish a life together at the time they were
married." Ibrahimi v. Holder, 566 F.3d 758,
764-65 (8th Cir. 2009) (quotation omitted).
Abuya's marriage to Maldonado was fraudulent is a
question of fact. See Agyei v. Holder, 729 F.3d 6,
14 (1st Cir. 2013); Abdulahad v. Holder, 581 F.3d
290, 295 (6th Cir. 2009). When the issue is within our
jurisdiction, such as in judicial review of a removal order,
we review this finding under the deferential substantial
evidence standard. See Wen Yuan Chan v. Lynch, 843
F.3d 539, 545 (1st Cir. 2016); 8 U.S.C. § 1252(b)(4)(B)
("administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary"). Though the couple's intent at the
outset of the marriage is the relevant question, "[w]hen
assessing the couple's intent, courts look to both the
period before and after the marriage." Surganova v.
Holder, 612 F.3d 901, 904 (7th Cir. 2010).
"Evidence that the parties separated after their wedding
is relevant in ascertaining whether they intended to
establish a life together when they exchanged marriage
vows." Matter of McKee, 17 I. & N. Dec.
332, 334-35 (1980).
evidentiary hearing, Immigration Officer Trendel Sheffield
testified that he interviewed Abuya and Maldonado in March
2008 in connection with their pending I-130 and I-485
applications. After background checks led him to doubt the
validity of the marriage, Sheffield requested an
investigation by the USCIS Fraud Detection National Security
Unit. Fraud Detection Officer Mark Reis-Henrie testified that
he visited Abuya's residence on May 1, 2010. Abuya and
several other males were present. When Reis-Henrie asked
where Maldonado was, Abuya responded that she left about a
week earlier and did not leave any belongings behind.
next visited Maldonado at the address she had reported in
public records and asked about her relationship with Abuya.
She stated she was married to Abuya but they were having
disagreements. When asked, Maldonado said she had left some
belongings at Abuya's home and that "he was from
Kenya, Africa." After that meeting, Reis-Henrie obtained
copies of numerous applications from Maldonado to the Kansas
Social and Rehabilitative Services and other benefit
organizations from August 2006 through September 2010. Though
Maldonado stated her name was April Abuya on the I-130, she
stated her name was April Maldonado on the state benefit
applications. Maldonado also stated she was not married and
lived with her mother and her children, listing a different
address in Wichita, Kansas than the one at which Abuya
resided. She did not list Abuya as her husband or a person in
her household on any application made during their marriage.
testified that he again visited Abuya on May 20, 2011. This
time, Abuya was present with a female, Damaris Nyeaga. Abuya
told Reis-Henrie that Maldonado had left three weeks earlier
to go to Texas to care for her ill brother. Seeing
women's clothing throughout the apartment, Reis-Henrie
asked whether Abuya could show him any clothing belonging to
Maldonado. Out of the presence of Nyeaga, Abuya showed
Reis-Henrie a striped sweater. Separately, Reis-Henrie asked
Nyeaga to show him whether any clothing in the home belonged
to her. Nyeaga brought Reis-Henrie the same sweater Abuya
said belonged to Maldonado.
Sheffield learned in May 2012 that the Fraud Detection Unit
made a finding of fraud. Sheffield then obtained police
reports from 2009 stating that Maldonado was the girlfriend
of Dante Harris. Sheffield spoke with the principal of the
elementary school Maldonado's daughter attended. The
principal stated that the school's address for the
daughter was Maldonado's address, that Abuya's
address was not within the school's boundaries, and that
no petition had been filed for the child to attend an
out-of-boundary school. Abuya was not listed on school
records as a parent or emergency contact.
testified that he started living with Maldonado in
"August, " after they were married, never
clarifying the year. He did not know Maldonado applied for
state benefits. The last time he talked to Maldonado was when
renewing his lease in 2010; they had separated multiple times
before then. Abuya testified that Nyeaga arrived at his home
about three weeks before Reis-Henrie's May 2011 visit.
Initially, they were not in a romantic relationship, but this
later changed. Abuya stated that Maldonado had gone to Texas
about three months prior to Reis-Henrie's visit and that
Maldonado and Nyeaga never lived in his home at the same
time. He divorced Maldonado in December 2012. Maldonado was
listed as a hearing witness but did not appear. A May 2012