United States Court of Appeals

For the First Circuit

No. 02-2291

MOHAMED J. KRAZOUN,

Petitioner,

v.

JOHN D. ASHCROFT, ATTORNEY GENERAL,

Respondent.

 

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

 

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

 

Desmond P. Fitzgerald and Fitzgerald & Company, LLP were on

brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Emily Anne Radford, Assistant Director, and Papu Sandhu, Senior

Litigation Counsel, Office of Immigration Litigation, were on brief

for respondent.

 

November 25, 2003

 
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CYR, Senior Circuit Judge. Petitioner Mohamed Jamal

Krazoun appeals from a Board of Immigration Appeals (BIA) decision

which rejected his motion to reopen his deportation proceedings in

order to determine whether he is entitled to permanent resident

status based upon his September 2001 marriage to a permanent United

States resident. We affirm the BIA decision.

I

BACKGROUND

Krazoun, a native and citizen of Syria, initially entered

the United States on a student visa in 1979. In 1983, he married

a United States citizen, Magnolia Arungo-Garcia, who petitioned the

INS for a relative visa in Krazoun’s behalf. However, after she

had been subjected to verbal abuse, harassment, and threats from

Krazoun, Arungo-Garcia obtained a restraining order against

Krazoun, and withdrew her pending INS petition. One year later,

the couple divorced.

In late 1989, Krazoun met Georgia Balesteri, a United

States citizen; the two married in January 1990. In July 1990,

Balesteri likewise obtained a restraining order against Krazoun,

and the couple ceased living together. Nonetheless, in March 1991,

based upon his marriage to Balesteri, Krazoun adjusted his

immigration status to that of conditional permanent resident. See

8 U.S.C. § 1186a(a), (g)(1). Had the marriage endured for two

years (i.e., until March 1993), Krazoun and Balesteri would have
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become entitled to petition the INS to adjust Krazoun's immigration

status to that of permanent resident. See id. at § 1186a(c),

(d)(1).

In January 1993, Balesteri and Krazoun jointly submitted

a motion attesting that they were continuing to cohabit. Although

the joint motion purportedly contained Balesteri's signature, the

signature did not appear to match other samples of her handwriting.

In addition, Balesteri failed to appear for three separate INS

interviews at which she was to provide support for the joint

motion. Moreover, Krazoun himself misled INS interviewers to

believe that (i) he continued to cohabit with Balesteri, and (ii)

that Balesteri would appear at subsequent INS interviews, see 8

U.S.C. § 1186a(c)(1)(B); 8 C.F.R. § 216.4(b). Eventually, the INS

terminated the conditional resident status previously granted

Krazoun. After Balesteri finally filed for divorce from Krazoun in

May 1994, the INS initiated deportation proceedings against

Krazoun.

In November 1994, an immigration judge (IJ) ruled Krazoun

deportable. At the same time, Krazoun moved to continue the

deportation proceedings so he could obtain an INS waiver of the

requirement that he and Balesteri submit a joint petition to remove

his conditional resident status, on the basis that Krazoun had

entered into the 1990 marriage with Balesteri in “good faith,” that

it was not a sham marriage but instead had terminated for other
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reasons. See 8 U.S.C. § 1186a(c)(4) (waiver requirements). As no

divorce decree had yet been entered, however, the IJ denied the

request, whereupon Krazoun appealed to the BIA. Due to the fact

that Krazoun's divorce became final in July 1995, however, the BIA

remanded to the IJ to direct the INS to rule upon Krazoun’s waiver

application.

The INS denied the waiver application, finding (i) that

Krazoun had fraudulently concealed the fact that his 1990 marriage

to a permanent resident was a sham; and (ii) on occasion Krazoun

had stated that he lived with Balesteri until April 1993, yet at

other times he said until September 1993; whereas Balesteri’s May

1994 divorce complaint represented that the two had ceased living

together in July 1990, and Balesteri’s mother asserted that they

had never lived together at all following their marriage.

When the deportation proceedings resumed before the IJ in

January 1998, Krazoun testified that (i) Balesteri lived with him,

from time to time, until March 1993; (ii) Balesteri lived with him

from mid-to-late-1992; and (iii) even though Balesteri previously

had submitted an affidavit attesting that the two had met in “the

late winter of 1989," viz., shortly before their marriage, Krazoun

first met Balesteri in October 1988. Moreover, Krazoun's brother

testified that Krazoun and Balesteri had lived together for only

six or seven months after their marriage. 

The IJ sustained the 1994 termination of Krazoun’s
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conditional residence status by the INS, as well as its denial of

Krazoun's waiver petition, then ordered that Krazoun be deported.

In addition, the IJ specifically found that Krazoun had married

both Arungo-Garcia and Balesteri for the purpose of evading the

United States immigration laws, based on the evidence that (i)

Krazoun had misled the INS by stating that his wife would appear

for the August 1993 INS interview, given that he testified at the

hearing that he had ceased living with her in April 1993; (ii)

Krazoun’s prior statements to the INS – viz., that he had lived

with Balesteri until September 1993 – were contradicted by the

dates set forth in Balesteri’s divorce action complaint (i.e.,

until July 1990) and by Krazoun’s own brother (i.e., until JuneJuly 1990); and (iii) both of Krazoun’s former spouses, ArungoGarcia and Balesteri, had obtained restraining orders against him

shortly after their respective marriages. After hearing Krazoun

testify and observing his demeanor, the IJ found that Krazoun

lacked credibility, and that he would “lie to get what he wants.”

The BIA summarily affirmed the IJ’s decision in May 2002. Krazoun

did not petition for review.

Moreover, Krazoun had married another United States

citizen, Janice Gittino, in September 2001. In June 2002, Krazoun

petitioned the BIA to reopen his case, claiming that this third

marriage was bona fide and that he and Gittino were expecting a

child in October 2002. The BIA rejected the Krazoun motion to
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reopen on two grounds. First, without regard to whether the

putative third marriage might entitle Krazoun to relief from

deportation, the BIA decided to exercise its broad discretion not

to reopen, due to Krazoun’s demonstrated history of having entered

into two previous marriages with the fraudulent intention to evade

the immigration laws. Second, the BIA noted that Krazoun had never

produced an approved visa petition – a condition precedent to the

requested relief – and had failed to adduce clear and convincing

evidence that the third marriage he entered into was bona fide.

Krazoun now petitions for review.

II

DISCUSSION

Krazoun contends that the BIA erred in not granting the

motion to reopen, in that (i) Krazoun adduced clear and convincing

evidence that his third marriage was bona fide, which included the

recent birth certificate of the couple’s first child; (ii) the

finding of fact made by the IJ in 1998 – that Krazoun’s first

marriage to Arungo-Garcia was fraudulent – was belied by the

evidence that Arungo-Garcia needed a protective restraining order

to curb the violence in their marriage relationship; and (iii) the

denial of discretionary relief by the BIA conflicts with the

legislative policy disfavoring deportations which divide families.

As we have observed previously, the strong public policy

favoring expeditious deportation proceedings plainly bespeaks
1The BIA also denied Krazoun’s motion because his pending

relative visa petition had not been approved, a distinct

prerequisite to a motion to reopen. See In re Velarde-Pacheco, 23

I. & N. Dec. at 256. Because we find ample alternative substantive

grounds to uphold the BIA’s decision, see infra, we bypass this

issue.

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disfavor of motions to reopen. See Fesseha v. Ashcroft, 333 F.3d

13, 20 (1st Cir. 2003). Thus, the BIA's denial of the Krazoun

motion to reopen was proper, provided either that (i) Krazoun

failed to establish the bona fides of his third marriage, entered

into after the IJ’s 1998 decision, see In re Velarde-Pacheco, 23 I.

& N. Dec. 253, 256 (BIA 2002) (requiring that alien “present[]

clear and convincing evidence indicating a strong likelihood that

[his] marriage [during pending deportation proceedings] is bona

fide”); 8 C.F.R. § 204.2(a) (same); or (ii) regardless whether he

proved that his third marriage was bona fide, the BIA, in its

discretion, denied Krazoun an adjustment of status, and that

decision was neither arbitrary and capricious nor predicated upon

a misinterpretation of applicable law. See Fesseha, 333 F.3d at

20; see also INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); 8 C.F.R.

§ 3.2(a) ("The Board has discretion to deny a motion to reopen even

if the party moving has made out a prima facie case for relief.").

1

As our statement of the background facts amply

demonstrates, supra, the BIA decision denying the motion to open

must be affirmed. Krazoun plainly failed to present clear and

convincing evidence that his third marriage was bona fide.
2In addition to exposing himself to the risk of criminal

prosecution, Krazoun’s perjury would disqualify him from other

discretionary relief, such as suspension of deportation or

voluntary departure. See, e.g., Opere v. INS, 267 F.3d 10, 13-14

(1st Cir. 2001) (noting that any alien who, within seven years

before his application for suspension of deportation, has given

false testimony for the purpose of obtaining any immigration

benefit is precluded from proving “good moral character,” and thus

is ineligible for a suspension of deportation). It is not

surprising, therefore, that the Krazoun motion to reopen did not

seek reconsideration of the earlier denial of his applications for

suspension and voluntary departure.

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Although he unquestionably documented the fact that he married

Gittino in June 2002, the pertinent issue before the BIA was not

whether Krazoun had married for the third time, but whether he did

so once again with the intent to evade the immigration laws and to

delay and impede imminent deportation. There can be no genuine

question that the two earlier fraudulent marriages into which

Krazoun entered, with intent to evade the immigration laws, gave

rise to a common-sense inference, as well as the legitimate

suspicion, that Krazoun's third marriage – more likely than not –

had been entered into with the same illegitimate aim.2

Moreover, Krazoun’s contention – that the bona fides of

the first marriage was demonstrated by Arungo-Garcia’s need to

obtain a restraining order to stem the violence in their marriage

relationship – may have been appropriate argumentation before the

IJ in 1998, but nothing in the present record compelled the IJ to

draw so curious a conclusion. See Oliva-Muralles v. Ashcroft, 328

F.3d 25, 27 (1st Cir. 2003) (noting that IJ’s findings of fact may
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be set aside only if "the evidence is so compelling that no

reasonable fact-finder could fail to reach the contrary

conclusion"). Insofar as there was conflicting evidence, we would

accord the IJ’s credibility determinations great deference. See

Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999). Even these

formidable standards of review are no longer applicable, however,

inasmuch as Krazoun did not petition this court in 1998 for review

of the IJ’s factual findings. Accordingly, this matter neither

constitutes “new” material evidence, see INS v. Doherty, 502 U.S.

314, 323 (1992), nor provides a basis for the instant motion to

reopen. See Fesseha, 333 F.3d at 20.

Finally, even assuming we were to conclude that Krazoun

adduced clear and convincing evidence that the third marriage was

other than a sham, it nonetheless remains that the BIA acted well

within its discretion in bypassing such an inquiry and denying

Krazoun a discretionary adjustment of status, based exclusively

upon his history of recurrent immigration fraud. See Doherty, 502

U.S. at 322. Krazoun's prior violations were not only flagrant,

but accompanied by abusive threats to his first two spouses. See

Guan v. INS, 49 F.3d 1259, 1262-63 (7th Cir. 1995) (affirming BIA’s

discretionary denial of adjustment of status where petitioner

previously had engaged in a flagrantly fraudulent marriage, then

applied for adjustment of status based on an allegedly bona fide

second marriage).
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Moreover, the record is replete with evidence that

Krazoun repeatedly lied to conceal these violations. For instance,

he falsely testified that he had met Balesteri more than one year

prior to their marriage, whereas in fact he met Balesteri in late

1989 and married her in January 1990; he lied again when he

informed the INS that he cohabited with Balesteri until 1993,

whereas he had ceased living with her a mere six or seven months

following their marriage. Given this egregious record, and the

cogent statement of the grounds upon which the BIA rejected

Krazoun’s motion to reopen, the exercise of its discretion was

anything but arbitrary or capricious. See Fesseha, 333 F.3d at 20.

Instead, the BIA properly concluded that Krazoun simply was up to

his old tricks. See also INS v. Jong Ha Wang, 450 U.S. 139, 143

n.5 (1981) (noting that discretionary bypass is necessary to enable

INS to thwart repeated delays of actual deportation by “aliens

creative and fertile enough to continuously produce new and

material facts sufficient to establish a prima facie case [and a

right to a hearing]”).

Accordingly, the BIA decision is hereby affirmed. SO

ORDERED.