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Maatougui v. Holder

United States Court of Appeals, Tenth Circuit

December 26, 2013

Nadia MAATOUGUI, Petitioner,
Eric H. HOLDER, Jr., Attorney General, Respondent.

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Sandra Saltrese-Miller, Attorney, Denver, Colorado, for Petitioner.

Charles S. Greene, Trial Attorney, (Derek C. Julius, Senior Litigation Counsel, with him on the brief) Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before TYMKOVICH, HOLLOWAY, Senior Judge, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

An immigration judge found Nadia Maatougui removable for marriage fraud in 2004. Maatougui, a native and citizen of Morocco who has lived in the United States since 2000, then requested asylum and four other forms of relief from removal. In a written decision in 2009, the IJ denied the requests, and the Board of Immigration Appeals affirmed. Maatougui petitioned for our review.

Maatougui claims the IJ and BIA erred in denying her a hardship waiver and cancellation of removal based on their credibility determinations and the weight they gave the evidence in her case. Under our case law, however, we do not have jurisdiction to overturn their credibility determinations or evidence weighing, and thus we cannot grant relief on this claim.

Maatougui also claims that changed conditions in Morocco and the ineffective assistance of her prior counsel at a hearing in 2004 merit reopening her case. But Maatougui has failed to present new, material, previously unavailable evidence that justifies reopening her case. The BIA's decision, while concise, was not insufficient under the circumstances. And the BIA did not abuse its discretion in declining to consider the ineffective assistance claim after Maatougui waited over six years to raise it.

Accordingly, we DISMISS the first claim for lack of jurisdiction, and, exercising jurisdiction under 8 U.S.C. § 1252, we DENY the second.

I. Background

Nadia Maatougui met her first husband, Khalid Zerougui, in their home country of Morocco. After about two years of marriage,

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in December 1999, Maatougui left Morocco to visit one of her brothers living in the United States. Maatougui then returned to Morocco, and on May 22, 2000, divorced Zerougui. About twelve days later, she again entered the United States, this time with a six-month visa. Not long thereafter, Zerougui also entered the United States.

After overstaying her visa, Maatougui befriended Joseph Gearhart, a United States citizen, in December 2000. According to Maatougui, the two quickly fell in love, and on May 7, 2001, they were wed at a driver's license bureau in Colorado. Based on this marriage, Maatougui applied for lawful permanent residency on July 9, 2001; the next day, Gearhart signed a visa petition to accompany her application.

Shortly after her marriage to Gearhart, Maatougui became pregnant with a child, born February 28, 2002. The child's father was not Gearhart but Zerougui, Maatougui's former husband. Just before the birth, on January 9, 2002, Zerougui also married a United States citizen and, on that basis, applied for lawful permanent residency, just like Maatougui.

As part of Zerougui's permanent-residency application process, he was interviewed by the Department of Homeland Security. During this interview, Zerougui disclosed that he and Maatougui had a child together. DHS demanded to see the child's birth certificate, which Zerougui later provided. The certificate confirmed that Zerougui and Maatougui were the parents. Zerougui's wife then withdrew her visa petition for Zerougui, and DHS issued a notice to appear, charging him with removability.

DHS also began investigating Maatougui. It learned that in her interview for legal permanent residency, she failed to disclose her child's birth. It also learned from credit history reports that Maatougui and Zerougui shared the same address, even though, in Maatougui's immigration forms, she listed Gearhart's address as her own. Then, DHS contacted Gearhart's mother and asked about her son's marital status. The mother reported that Gearhart was not married but instead lived with his girlfriend. DHS next contacted Gearhart, who admitted that he married Maatougui in exchange for about $2,500 and that the sole purpose of the marriage was for Maatougui to obtain lawful residency. Gearhart subsequently withdrew his visa petition for Maatougui.

DHS charged Maatougui as removable from the United States. DHS's legal basis for her removal was that Maatougui tried to procure lawful permanent residency through fraud, a violation of 8 U.S.C. § 1182(a)(6)(C)(i) and a deportable offense under 8 U.S.C. § 1227(a)(1)(A). Maatougui denied the removability charge, and an evidentiary hearing on whether Maatougui had committed fraud was set for October 2004.

At the October 2004 hearing, an IJ in Colorado heard testimony from both Gearhart and Maatougui, who was represented by counsel, and the DHS agent who had been investigating Maatougui's residency application. The DHS agent testified first. He explained how the investigation into Maatougui's permanent-residency application began and how he had identified misrepresentations in her application materials, including that she denied having any children in September 2002— almost seven months after her son's birth— and that she listed Gearhart's address as her own when credit history checks showed her living at a different address, one she shared with Zerougui. The DHS agent also explained that " [i]t is very typical for husbands and wives to come [into] the United States ... separately," and then " both pursue marriage through separate U.S. citizens" to obtain lawful permanent residency " when

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in reality the[ir] relationship never ceased to exist." Agency R. 430. He said he believed this was the case with Maatougui and Zerougui.

Next, Gearhart took the stand. He testified that his marriage to Maatougui " wasn't real." Id. at 447. He said one of Maatougui's brothers living in the United States had approached Gearhart about marrying her and supporting a visa petition for her lawful permanent residency status. The brother offered Gearhart around two to three thousand dollars and explained that the marriage would be " on paper only." Id. at 448. Gearhart agreed to the arrangement. He admitted having a " fantasy that something might happen," as he had just been divorced and was " kind of lonely." Id. But after their brief ceremony at the driver's license bureau, he and Maatougui went their separate ways. They never consummated the marriage, nor did they ever live together. He called the marriage " a scam." Id.

Finally, Maatougui took the stand. She maintained that she and Gearhart had, in fact, a bone fide marriage. She presented some photographs to show her and Gearhart's life together, but she admitted that many of the photographs depicted her and others in the same clothing, that all of the photographs were from the summer of 2001, and that she had no other photographs of the family together. As for how she conceived her son, she explained that her encounter with Zerougui was a very brief affair resulting from Gearhart's abusing her and her deciding to flee his home for a short while.

At the conclusion of the October 2004 hearing, the IJ found Gearhart credible and Maatougui not, and he issued a removal order for Maatougui based on her misrepresentations during her residency application process.

Afterwards, Maatougui terminated her counsel at the time and retained new counsel in his stead. Her new counsel assisted Maatougui in filing five different requests for relief from the removal order— requests for asylum, cancellation of removal, withdrawal of removal, relief under the United Nation's Convention Against Torture (CAT), and a hardship waiver for the joint petition requirement of her permanent residency status. Maatougui also asked that the IJ receive additional evidence on Gearhart's credibility and the legitimacy of their marriage. The IJ agreed, and Maatougui submitted Gearhart's tax returns in which he listed another woman as his wife despite being married to Maatougui at the time.

The IJ also agreed to receive testimony in support of Maatougui's various requests for relief. At another evidentiary hearing, Maatougui presented two experts, Dr. Marjorie Leidig (an expert on battered women) and Professor Shaul Gabbay (an expert on sociology in the Muslim world and Morocco). Dr. Leidig testified that she believed Maatougui was in a bona fide marriage with Gearhart and that Gearhart had in fact abused her. Professor Gabbay testified that Maatougui was at risk of an " honor killing" — where family members kill a disgraced relative— if she returned to Morocco. At the conclusion of the hearing, the IJ granted one more evidentiary hearing at which Maatougui and her mother could testify about the threats Maatougui faced in Morocco as well as the legitimacy of her marriage to Gearhart.

At the third and final evidentiary hearing, Maatougui and her mother both discussed threats Maatougui received from one of her brothers, who they said was a Muslim fundamentalist still living in Morocco. They also discussed concerns with Maatougui's former in-laws (parents of Zerougui), who also still lived in Morocco

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and allegedly were threatening to take away Maatougui's son.[1]

In addition, Maatougui again testified about her relationship with Gearhart and how she briefly left Gearhart and conceived her son with Zerougui. In the course of her testimony, Maatougui made several statements that were inconsistent with her earlier testimony. For example, she said she fled to a friend's house after Gearhart abused her; but at the previous hearing, she had said it was her brother's house. She said she dated Zerougui for sometime after leaving Gearhart, and that they were intimate about three or four times; but previously she had said they met once and were intimate only once. And she said her son was with her mother when she was interviewed for an adjustment to her immigration status; but before she had said her son was with Zerougui during that time. When confronted with each inconsistency, she offered no explanation.

Also at this last hearing, Maatougui admitted that she and Zerougui had been using the same address, but she explained that the address was her brother's and that her brother allowed Zerougui to use the address for mailing purposes only.

The IJ denied all of Maatougui's applications for relief from the removal order. In his opinion, he explained his credibility determinations. He found Gearhart credible because Gearhart's testimony was consistent with what he had told the DHS agent before the earlier hearing; Gearhart's statements " were made against his penal interest because he knew filing a fraudulent petition ... was a crime" ; and Gearhart gave his testimony " in such a manner that indicated, although not proud of his actions, he was telling the truth." Agency R. 402. The IJ found Maatougui not credible because she conceived a child with Zerougui only a few weeks after marrying Gearhart, " call[ing] into doubt the validity of the[ir] marriage." Id. at 403. He also found Maatougui not credible because she initially listed Gearhart's birth date incorrectly on an immigration form, she failed to list her son on her residency application, and her account of her marriage to Gearhart and her tryst with Zerougui had changed in many significant and unexplained respects. The IJ concluded that Maatougui committed marriage fraud.

As for Maatougui's claims for relief from deportation, the IJ did not find her or Professor Gabbay's testimony sufficient to justify any relief. The IJ noted that Maatougui and her son had traveled to Morocco safely several times since her marriage to Gearhart and that Professor Gabbay could not offer a single example of recent honor killings in Morocco. Nor did the IJ find Dr. Leidig's testimony sufficient to show that Maatougui was abused by Gearhart or that she was in a bona fide marriage with him, especially because Dr. Leidig interviewed only Maatougui during her investigation. The IJ found problematic Dr. Leidig's reliance on Maatougui's " self-serving ...

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