FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
J. Macarius and Law Offices of Saher J. Macarius, LLC on
brief for petitioner.
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.
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
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
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
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).
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.
establish that she entered into her marriage in good faith,
Gitau must demonstrate that she "intended to establish a
life with [her] spouse at the time of marriage."
Valdez v. Lynch, 813 F.3d 407, 410
(1st Cir. 2016) (internal quotation marks omitted) (quoting
Cho v. Gonzales, 404 F.3d 96, 102
(1st Cir. 2005)). In making this determination, the Secretary
of Homeland Security is to "consider any credible
evidence relevant to the application." 8 U.S.C. §
1186a(c)(4). Congress assigned to the immigration
authorities, not to this Court, the responsibility for
determining the credibility of an applicant's testimony.
See id. ("The determination of what evidence is
credible and the weight to be given that evidence shall be
within the sole discretion of the Secretary of Homeland
Security."). As a result of this statutorily compelled
deference, we review credibility determinations under the
substantial evidence standard, which "requires us to
uphold the agency's findings so long as the record does
not 'compel a reasonable factfinder to reach a contrary
determination.'" Rivas-Mira v.
Holder, 556 F.3d 1, 4 (1st Cir. 2009) (quoting
Chhay v. Mukasey, 540 F.3d 1, 5
(1st Cir. 2008)). This deference is great, but "not
unlimited." Jabri v. Holder,
675 F.3d 20, 24 (1st Cir. 2012).
reviewing a credibility determination, we recognize that the
law governing removal proceedings expressly authorizes the IJ
to consider "demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the . . .
account, the consistency [of the evidence] . . . and any
inaccuracies or falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant's claim." 8 U.S.C. §
1229a(c)(4)(C). So, too, the IJ must consider any
corroborating evidence offered, id. §
1229a(c)(4)(B), and assess the evidence as a whole.
Jabri, 675 F.3d at 24.
undisputed that a wedding took place in October 2004. The
issue, though, is whether Gitau entered into the marriage in
good faith. Examination of Gitau at the hearing trained on
determining how Gitau remembered her courtship and wedding,
how well she knew Johnson and his friends, and what living
arrangements ensued. The IJ found that Gitau's testimony
contained numerous statements inconsistent with ones she had
made previously, and as such, she had "failed to testify
credibly regarding her marriage." In so finding, the IJ
pointed to four ways in which Gitau's testimony
conflicted with other evidence, most significantly her own
prior statements made to the United States Customs and
Immigration Service ("USCIS") and statements
contained within various sworn declarations. These
inconsistencies involved: the length of Gitau and
Johnson's courtship, the identity of the attendees at
their wedding, the identity of the persons residing with
them, and the timeframe of her separation from Johnson. The
IJ considered the ...