Gitau v. Sessions

United States Court of Appeals For the First Circuit No. 17-1280 ELIZABETH WAIRIMU GITAU, Petitioner, v. JEFFERSON B. SESSIONS III, United States Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Torruella, Kayatta, and Barron, Circuit Judges. Saher J. Macarius and Law Offices of Saher J. Macarius, LLC on brief for petitioner. Sunah Lee, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on brief for respondent. December 22, 2017 KAYATTA, Circuit Judge. Elizabeth Wairimu Gitau petitions for review of a decision from the Board of Immigration Appeals ("BIA") dismissing her appeal of an Immigration Judge's ("IJ") decision ordering her removal to Kenya. Having reviewed the BIA's decision, including the decision of the IJ as adopted by the BIA, see Guerrero v. Holder, 667 F.3d 74, 76 (1st Cir. 2012), as well as the record and the parties' briefs, we deny Gitau's petition. I. Gitau is a native and citizen of Kenya. Following a marriage to a United States citizen, Undray Johnson, Gitau became a lawful permanent resident on a conditional basis. Under 8 U.S.C. §§ 1186a(c)(1)(A) and (B), she and Johnson could remove the conditional nature of her status by jointly filing Form I-751, the Application to Remove the Conditions of Residence. They divorced, however, and Gitau was unable to satisfy the joint filing requirement. She filed a petition to waive the joint filing requirement, pursuant to 8 U.S.C. § 1186a(c)(4) and 8 C.F.R. § 1216.5, which permit an alien who cannot satisfy the joint filing requirement to nonetheless avoid removal if certain conditions are met. That petition was denied. She was subsequently placed in removal proceedings, whereupon she renewed her request for a waiver. In her waiver requests, she relied upon three subsections of the regulation addressing such waivers, two of which required - 2 - a showing that she entered into the marriage in good faith, 8 C.F.R. §§ 1216.5(a)(1)(ii)–(iii), and the third of which required a showing that her removal would result in extreme hardship, 8 C.F.R. § 1216.5(a)(1)(i). After a testimonial hearing, the IJ ruled against Gitau, finding her not to be a credible witness and finding the evidence other than her own testimony to be insufficient to support her claim that she entered into her marriage in good faith. The IJ also found that Gitau had not demonstrated extreme hardship. Rejecting Gitau's appeal, the BIA adopted and affirmed the IJ's decision, determining that the IJ did not clearly err in finding Gitau's testimony not credible, and that the IJ adequately considered her documentary evidence. Gitau now asks us to set aside the BIA's decision for lack of substantial evidence supporting its findings.1 1 The Statement of Issues in Gitau's brief also lists as an issue before us: "Whether the BIA's decision is arbitrary and capricious and not in accordance with current immigration policy." That ...

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