Maxwell Abuya v. Jefferson B. Sessions, III

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3407 ___________________________ Maxwell O. Abuya lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III, Attorney General lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: June 6, 2017 Filed: October 17, 2017 ____________ Before LOKEN, MURPHY, and MELLOY, Circuit Judges. ____________ LOKEN, Circuit Judge. Maxwell 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v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008); Pauliukoniene v. Holder, 496 F. App’x 657, 659-60 (7th Cir. 2012) (unpublished). We deny the petition for review. I. In a 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). -2- Whether 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 ...

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