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 
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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 
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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 formulation of the issue would seem to be less favorable to 

Gitau than the substantial evidence test argued elsewhere in her 

brief. Be that as it may, she does not press this formulation in 

the substantive portions of her brief, thus waiving it. See Puerto 

Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st Cir. 

2017). She also alludes to due process concerns in her Summary of 

Argument, but similarly fails to develop any argument on this 

point, thus waiving it as well. Id. 
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II. 

A. 

To 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.'" RivasMira 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). 
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In 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. 

It is 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 
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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 inconsistencies 

along with Gitau's explanations for them, and ultimately 

determined that the inconsistencies rendered her testimony not 

credible. The IJ also found that her other evidence insufficiently 

corroborated, and actually contradicted, her testimony. 

We have reviewed the transcript of Gitau's testimony and 

the portions of the record said to be inconsistent with that 

testimony. As to the length of her courtship, though her testimony 

was arguably inconsistent, this inconsistency may be explained by 

differing understandings of engagement and dating, or simply by 

non-malicious inaccuracy, fading memory, or imprecise questioning. 

Though the IJ mentioned this inconsistency, he did not discuss it 

in depth, and appeared to place little weight on it. He placed 

more weight on Gitau's troubles with accurately identifying the 

guests at her wedding. In her testimony, Gitau identified these 

guests as her sister, Donald Dennard (her sister's boyfriend), and 

Peter Hicks. Gitau's 2010 statement to USCIS, however, claimed 

that the wedding attendees were her sister and a "Peter Smith." 

She also told USCIS in 2010 that she did not recognize the names 

Peter Hicks and Donald Dennard. Since there is other evidence 

that someone by the name of Peter Hicks was Johnson's friend, it 
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is possible that Gitau's memory simply faded as time passed since 

the 2004 wedding. On the whole, though, this was not the type of 

testimony that got Gitau off on a good foot. 

As for who lived with her and when, Gitau's statements 

were also inconsistent, but only if one excluded the possibility 

that her mother's brief stays with her were not "living with her." 

Less easy to explain -- for Gitau -- are her inconsistent 

statements about a very important point: when she and Johnson 

separated. She told the IJ, repeatedly, that Johnson moved out in 

January 2007. Previously, though, she had stated in a declaration 

to USCIS that Johnson had left in June 2008, and had testified 

before USCIS that he had left in November 2008. On appeal, Gitau 

suggests that Johnson had various types and degrees of departure 

between 2007 and late 2008. The IJ -- who actually observed 

Gitau's testimony -- was not inclined to view it so charitably. 

He also considered and rejected Gitau's claim that her failure to 

testify consistently could be attributed to anxiety. 

Though the remainder of Gitau's testimonial evidence 

largely supported her claim, none of it did so decisively, as it 

consisted primarily of testimony from her sister and uncle, as 

well as witness statements in affidavits. Moreover, the IJ also 

found inconsistencies in the testimony of Gitau's sister, thus 

reducing even further the persuasive value of this testimony. And 

the documentary evidence Gitau provided, consisting of bills, 
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financial records, and the like, was similarly inconclusive. It 

does appear that Gitau and Johnson filed a joint federal tax return 

for 2006 reflecting the address at which Gitau says they then 

resided together, but Johnson's W-2 forms for that same year show 

a different address. Gitau also offered copies of statements and 

bills addressed to the couple, all but one of which post-date the 

January 2007 claimed date of separation. And certainly it did not 

help Gitau's cause that the evidence also showed that in 2007 

Johnson purported to marry two other individuals seeking residence 

status in the United States. 

On this record, a reasonable factfinder could have gone 

either way on the question of whether Gitau was credible, and 

consequently, on the question of whether she carried her burden of 

proving that she married Johnson in good faith. There being no 

plausible claim of legal error, we therefore lack any ability to 

substitute our assessment of the evidence for that of the IJ. 

Accordingly, we conclude that there was no error in denying Gitau 

a waiver based on a good faith marriage pursuant to 8 U.S.C. 

§§ 1186a(c)(4)(B) or (C). 

B. 

As an alternative ground for a waiver, Gitau argued to 

the IJ and BIA, and contends here, that she would suffer extreme 

hardship were she to be removed, and thus should have been granted 

a waiver under 8 U.S.C. § 1186a(c)(4)(A). The government counters 
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that as a threshold matter, we lack jurisdiction to review the 

BIA's determination as to extreme hardship, and that in any event, 

the BIA was correct to deny the waiver. 

We are not persuaded by the government's jurisdictional 

argument. It is true that under 8 U.S.C. § 1252(a)(2)(B)(ii), 

Congress removed our jurisdiction over any "decision or action of 

the Attorney General or the Secretary of Homeland Security the 

authority for which is specified under this subchapter to be in 

the discretion of the Attorney General or the Secretary of Homeland 

Security." However, we have made clear that there is a distinction 

between questions of law concerning eligibility for relief and the 

ultimate decision of the Secretary to grant such relief if 

eligibility is found. See Cho, 404 F.3d at 101–02. Stressing the 

courts' "customary power to be the final word on the meaning of 

legal concepts," we have held that we have jurisdiction to review 

the BIA's application of the law in determining whether the 

eligibility factors are satisfied, but lack jurisdiction to review 

the Secretary's final decision to grant or withhold discretionary 

relief. Id. at 102 ("We hold today . . . that eligibility rulings 

under section 1186a remain reviewable by the courts . . . ."). 

The government tries to distinguish Cho -- which dealt 

with a determination of good faith marriage, as opposed to a 

determination of extreme hardship -- on the basis that the good 

faith determination is governed by objective regulatory criteria, 
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while the extreme hardship determination is not. However, this is 

not entirely accurate. The regulation governing extreme hardship 

contains two dictates: the Secretary "shall" consider only the 

circumstances that arose during the time period of the applicant's 

conditional residence in the United States,2 and the Secretary 

"shall" likewise "bear in mind" that all removals result in some 

hardship, and the waiver should only be granted for the subset 

where the hardship is extreme. 8 C.F.R. § 1216.5(e)(1). This is 

not dramatically different it its degree of objectivity from the 

regulatory guidance given for the determination of a good faith 

marriage; indeed, the only mandatory consideration under that 

subsection of the regulation is that the Secretary "shall consider 

evidence relating to the amount of commitment by both parties to 

the marital relationship." 8 C.F.R. § 1216.5(e)(2). The 

 2 The language of the statute and the language of the 

regulation differ slightly as to the relevant time period; the 

former states that the relevant timeframe is only the period of 

conditional resident status, while the latter would seem to allow 

for an open-ended timeframe. Compare 8 U.S.C. § 1186a(c)(4) 

("[T]he Secretary . . . shall consider circumstances occurring 

only during the period that the alien was admitted for permanent 

residence on a conditional basis.") with 8 C.F.R. § 1216.5(e)(1) 

("[T]he director shall take into account only those factors that 

arose subsequent to the alien's entry as a conditional permanent 

resident."). However, the BIA has made clear that the only 

relevant time period is the period of conditional resident status, 

and as a result, any event that serves as a basis for a hardship 

finding must occur during this period, not simply subsequent to 

the grant of conditional resident status. See Matter of Munroe, 

26 I & N Dec. 428, 435 (BIA 2014). Gitau does not contend that 

Matter of Munroe was decided in error, and we assume without 

deciding that it correctly states the applicable law. 
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subsection goes on to list certain evidence that may satisfy this 

requirement, but it does not provide that this evidence constitutes 

the exclusive set of evidence the director shall consider. See 

id. § 1216.5(e)(2). Viewed in terms of what is actually mandatory 

for the Secretary, the differences between the regulatory 

treatment of the good faith determination and the extreme hardship 

determination are matters of degree, not kind. Thus, this 

distinction is not an adequate basis to depart from the holding of 

Cho that threshold determinations of eligibility for a waiver are 

reviewable, while the ultimate grant or denial of a waiver is not. 

Turning to the merits of Gitau's hardship claim, we have 

no trouble concluding that the BIA's finding on the question of 

extreme hardship was supported by substantial evidence.3 As 

contemplated by the regulation, removal necessarily involves some 

hardship, so an applicant must demonstrate hardship that goes 

beyond those normally attendant to removal. See Id. 

§ 1216.5(e)(1). And the extreme hardship must be due to conditions 

arising during the applicant's time as a conditional permanent 

resident. Id.; see also 8 U.S.C. § 1186a(c)(4); note 3, supra. 

 3 The government contends that the standard of review on this 

question is abuse of discretion. In support, it cites Gebremichael 

v. INS, 10 F.3d 28 (1st Cir. 1993). However, that case actually 

cuts against the government's contention. We noted in Gebremichael 

that while a motion to reopen or reconsider would be reviewed for 

abuse of discretion, determinations about statutory eligibility 

for relief are reviewed for substantial evidence. See id. at 34 

n.17. 
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Here, the BIA and IJ considered the evidence of hardship Gitau put 

forward, both individually and in the aggregate, and determined 

that much of the evidence concerning conditions in Kenya did not 

relate to the relevant period, but instead described general 

conditions in the country before and after the period. The same 

was true of evidence concerning changes in Gitau's life, for 

example, her student loan debt. The IJ and BIA determined that 

this debt, and the other changes she alleged, also occurred outside 

of the relevant time period. The only evidence of hardship the IJ 

considered to be not barred due to timing concerns was Gitau's 

testimony that it would be impossible for her to find work in her 

field in her parents' village in Kenya.4 The IJ (and the BIA, in 

adopting the IJ's decision) considered this point, but concluded 

that there was no evidence that Gitau would not be able to find 

employment somewhere in Kenya, and thus, this hardship would not 

be extreme. On this record, we cannot say that a reasonable 

factfinder would have been "compelled" to reach the opposite 

conclusion, and thus Gitau's challenge fails on substantial 

evidence review. See Rivas-Mira, 556 F.3d at 4. 

 4 Even this is arguable, as Gitau based the contention that 

she was unemployable on the fact that she had an advanced 

education. As the IJ noted, she acquired her advanced degree in 

2004, outside the relevant time period. That said, the IJ appeared 

to consider this particular form of hardship on the merits and not 

simply disregard it as outside of the proper timeframe.
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III. 

Gitau has failed to meet her burden of demonstrating 

that the BIA's decision was not supported by substantial evidence. 

The petition for review is denied.