11-3381

Hasan v. Holder

BIA

Montante, Jr., IJ

A078 417 964

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 1st day of May, two thousand thirteen.

PRESENT:

ROSEMARY S. POOLER,

RICHARD C. WESLEY,

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_______________________________________

SYED MOHAMMAD S. HASAN,

Petitioner, 

 v. 11-3381

ERIC H. HOLDER, JR., 

UNITED STATES ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: David C. Drake, Carliner & Remes,

P.C., Washington, D.C.

FOR RESPONDENT: Stuart Delery, Acting Assistant

Attorney General; Blair T. O’Connor,

Assistant Director; Juria L. Jones,

Trial Attorney, Office of
Immigration Litigation, U.S.

Department of Justice, Washington,

D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Syed Mohammad S. Hasan, a native and citizen

of Pakistan, seeks review of the July 22, 2011, decision of

the BIA affirming the August 28, 2009, decision of

Immigration Judge (“IJ”) Philip J. Montante, Jr., ordering

him removed. In re Syed Mohammad S. Hasan No. A078 417 964

(B.I.A. July 22, 2011), aff’g No. A078 417 964 (Immig. Ct.

Buffalo Aug. 28, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions. See Zaman v. Mukasey,

514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s

factual findings, including adverse credibility findings,

under the substantial evidence standard, treating them as

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008) (per curium). We review

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questions of law de novo. Aliyev v. Mukasey, 549 F.3d 111,

115 (2d Cir. 2008). 

As an initial matter, the government correctly contends

that Hasan failed to exhaust before the BIA his arguments

that: (1) the IJ erred in placing the burden on him to

demonstrate that he was not inadmissible; (2) his removal

proceedings should have been terminated to allow him to

apply for adjustment of status; and (3) the IJ violated his

due process rights by failing to provide him with an

opportunity to cross-examine the Border Patrol agent who

prepared his Form I-213, Record of Deportable/Inadmissible

Alien. We do not consider these unexhausted arguments. See

Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–20 (2d

Cir. 2007) (concluding that exhaustion of administrative

remedies is a predicate of this Court’s subject matter

jurisdiction, while the failure to exhaust specific issues

is an affirmative defense subject to waiver). 

The agency did not err in finding that Hasan was

inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which

provides that “[a]ny alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has

sought to procure or has procured) a visa, other

documentation, or admission into the United States or other

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benefit provided under this chapter is inadmissible.” See

also Aslam v. Mukasey, 537 F.3d 110, 116-17 (2d Cir. 2008)

(concluding the IJ did not err in finding the Government met

its burden of showing that petitioner is removable from the

United States in a case of marriage fraud). We have also

held that a “misrepresentation is material if it ‘has a

natural tendency to influence or was capable of influencing,

the decision of the decisionmaking body to which it was

addressed.’” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.

2005) (quoting Kungys v. United States, 485 U.S. 759, 770

(1988)). 

Here, the record includes a sworn statement, in which

Hasan: (1) stated that he paid his first wife two thousand

dollars to marry him so that he could obtain lawful

immigration status; and (2) admitted that he had been

untruthful when questioned by Customs and Border Patrol

(“CBP”) agents regarding the location of his immigration

documents because he thought they would release him from

custody and allow him to enter the United States to retrieve

the documents. Before the agency, Hasan admitted the

accuracy of the sworn statement and argued only that the

statement regarding his payment to his first wife should not

be construed literally because the payment was a dowry

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required by his religion rather than a payment for

participation in marriage fraud. 

However, the IJ did not err in declining to credit

Hasan’s explanation, particularly given that: (1) Hasan, who

had volunteered the information that he paid his first wife,

failed to mention that he gave his second wife a dowry; (2)

the two thousand dollar payment, which included a payment

upon divorce, more closely resembled a commercial

transaction than did the unconditional gift of gold jewelry

that Hasan provided his second wife; and (3) Hasan failed to

provide a consistent account regarding where he and his

first wife had lived during their relationship, thereby

further calling into question its validity. See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (explaining

that, although an IJ must consider an applicant’s

explanations, he need not credit them unless a reasonable

fact-finder would be compelled to do so); see also Xiu Xia

Lin, 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency

or omission in making an adverse credibility determination

as long as the ‘totality of the circumstances’ established

that an asylum applicant is not credible”) (internal

citation omitted) (emphasis in original). Thus, based on

Hasan’s admission that he paid his first wife to marry him

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in an attempt to procure a visa, the agency did not err in

finding him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). 

Moreover, the IJ reasonably found that, even if Hasan’s

first marriage was legitimate, he was nevertheless

inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) because he

admitted in his sworn statement that he had lied to CBP

agents regarding the whereabouts of his immigration

documents in order to enter into the United States. 

See 8 U.S.C. § 1182(a)(6)(C)(i); see also Monter, 430 F.3d

at 553. Although Hasan alleged at his merits hearing that

he was nervous when questioned by CBP agents, the IJ did not

err in finding this explanation unsatisfactory, particularly

when Hasan conceded that the responses attributed to him in

the sworn statement–including his admission of

dishonesty–were true and accurate. See Majidi, 430 F.3d at

80-81. 

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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