RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0154p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MIRVAT A.M.I. ELGEBALY,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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Nos. 23-3354/3877

On Petition for Review from the Board of Immigration Appeals.

No. A 059 525 513.

Decided and Filed: July 23, 2024

Before: BOGGS, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Russell Reid Abrutyn, ABRUTYN LAW PLLC, Southfield, Michigan, for 

Petitioner. Margot P. Kniffin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Respondent.

_________________

OPINION

_________________

CLAY, Circuit Judge. Petitioner Mirvat Elgebaly, a native and citizen of Egypt, seeks 

review of two Board of Immigration Appeals (“BIA”) decisions in this consolidated appeal. The 

first decision affirmed an immigration judge’s (“IJ”) denial of Elgebaly’s two applications for a 

hardship waiver of the requirement that a noncitizen spouse submit a joint petition with her 

citizen spouse to remove conditions on her permanent resident status. 8 U.S.C. § 1186a(c)(4). 

On appeal, Elgebaly claims that the BIA and IJ erred in finding her ex-husband’s testimony 

>
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credible, that the substantial evidence did not support denial of the hardship waivers, and that the 

IJ erred in failing to assist Elgebaly, proceeding pro se, in developing the record. The second 

BIA decision denied Elgebaly’s motion to reopen proceedings. Id. § 1229a(c)(7). Elgebaly 

argues that the BIA abused its discretion in considering her purportedly new and material 

evidence submitted with this motion. For the reasons set forth below, we DENY Elgebaly’s 

petitions for review.

I. BACKGROUND

Elgebaly was lawfully admitted to the United States as a conditional permanent resident 

on July 12, 2007 after she married American citizen Saladin Muhammad. Noncitizens who 

marry a United States citizen may receive conditional permanent resident status. Id.

§ 1186a(a)(1). The noncitizen spouse can apply for removal of the conditions of his or her status 

by submitting a petition jointly with the citizen spouse requesting the removal of these 

conditions. Id. § 1186a(c)(1)(A). If the citizen spouse does not submit the petition alongside the 

noncitizen spouse, the noncitizen spouse can apply for a hardship waiver, which the Secretary of 

Homeland Security, acting through immigration authorities, may grant if certain statutory criteria 

are met. Id. § 1186a(c)(4); see also Al-Saka v. Sessions, 904 F.3d 427, 430 (6th Cir. 2018). 

On March 30, 2009, Elgebaly and Muhammad submitted a joint petition to remove the 

conditions on Elgebaly’s permanent resident status. But almost a year later, Muhammad 

withdrew the joint petition. Immigration authorities accordingly terminated Elgebaly’s 

conditional permanent resident status and served her with a notice to appear for removal 

proceedings. On October 12, 2011, Elgebaly appeared before an IJ for an initial hearing. The IJ 

continued the hearing to give Elgebaly time to find an attorney.

During this continuance, Elgebaly applied for two hardship waivers to the joint petition 

requirement. First, she filed a waiver under a provision requiring her to show that she entered 

her marriage “in good faith,” but her spouse later “battered” her or subjected her to “extreme 

cruelty.” 8 U.S.C. § 1186a(c)(4)(C). Then, after she divorced Muhammad, she filed a separate 

hardship waiver under a provision that also requires a showing that she entered the marriage “in 

good faith,” and that the marriage has been terminated. Id. § 1186a(c)(4)(B). Immigration 
Nos. 23-3354/3877 Elgebaly v. Garland Page 3

authorities denied both waivers because they found that she did not marry Muhammad in good 

faith or suffer extreme cruelty.

1. Hearings Before Immigration Judge

Elgebaly appeared before an IJ again on March 23, 2017. She admitted to the facts that 

made her removable from the United States, but requested that the immigration judge review de 

novo the denial of her hardship waivers. See 8 C.F.R. § 1216.5(f) (permitting a noncitizen to 

seek review of a hardship waiver denial in removal proceedings). Accordingly, the testimony at 

Elgebaly’s removal proceeding centered on whether she married Muhammad in good faith and 

whether she experienced extreme cruelty during the marriage.

The IJ conducted multiple hearings, eliciting testimony from Elgebaly, her adult son by a 

previous marriage, her sister, her brother-in-law, her nephew, and Muhammad. Because 

Elgebaly was proceeding pro se, the IJ, as well as the government, asked questions of the 

witnesses; however, the IJ offered Elgebaly and her son—who spoke English fluently and was, at 

this time, a party to the removal proceedings—an opportunity to ask questions as well.

Witnesses offered largely consistent testimony detailing how Muhammad and Elgebaly 

came to be married. In approximately 2004 to 2005, Muhammad was a patient and then 

employee of the medical practice of Elgebaly’s brother-in-law, Abdulbaset Youssef. One day, 

Muhammad asked Tag Elgebaly (“Tag”), Elgebaly’s sister who worked at the practice, if she 

knew any single, Muslim women. Tag suggested her sister, Elgebaly, who lived in Egypt at the 

time. Elgebaly and her family members claimed that Elgebaly and Muhammad talked over the 

phone and via email after Muhammad’s conversation with Tag. Despite these claims, no emails 

between Elgebaly and Muhammad were introduced into the record, purportedly because 

Elgebaly could not remember her email password. Muhammad testified that he never spoke to 

Elgebaly before meeting her in person and had only seen one photo of her.

Eventually, Muhammad traveled to Egypt to meet Elgebaly. A few days into this roughly 

ten day trip in January 2006, Muhammad and Elgebaly were married. Muhammad did not 

anticipate that he would marry Elgebaly on the trip, but said that he did so because he trusted 

Tag, who accompanied Muhammad to Egypt. Although Youssef testified that neither he nor Tag 
Nos. 23-3354/3877 Elgebaly v. Garland Page 4

paid for Muhammad’s flights to Egypt, this testimony was contradicted by both Youssef’s prior 

sworn statement and Muhammad’s testimony. Elgebaly and her son remained in Egypt for about 

a year and a half while their visas for entry into the United States were processed. Both Elgebaly 

and Muhammad testified that they spoke on the phone during this period, but Muhammad never 

returned to Egypt to visit Elgebaly.

Elgebaly and her son entered the United States in July 2007 as conditional permanent 

residents. The witnesses’ testimonies describing Elgebaly’s time in the United States and her 

subsequent married life with Muhammad differed significantly. Elgebaly and her family 

members testified that she lived in Muhammad’s apartment for about a year after she came to the 

United States. Elgebaly also testified that she and Muhammad were physically intimate during 

this period. Muhammad contradicted this. He testified that, despite his requests, Elgebaly never 

moved into his apartment, but instead stayed with relatives. He also testified that the couple 

spent very little time together when married, were not intimate, and never consummated the 

marriage. Other than a driver’s license listing Muhammad’s apartment as her home address, 

Elgebaly submitted no corroborating documents to support her claim that she lived with 

Muhammad while in the United States.

After about a year, Elgebaly returned to Egypt for a few months to resolve personal 

issues. While Elgebaly was in Egypt, Muhammad moved out of his apartment and moved in 

with relatives. When Elgebaly came back to the United States, she moved in with Tag and 

Youssef, and then with her son when he moved to a new apartment. A few months later, in 

March 2009, Elgebaly and Muhammad submitted a joint petition to remove the conditions from 

her permanent resident status. After Muhammad withdrew the joint petition on March 24, 2010, 

Elgebaly filed for divorce, and on March 8, 2013, Elgebaly and Muhammad were divorced. At 

no point during the marriage did they have a joint bank account. Muhammad testified before the 

IJ that he believed Elgebaly had married him to become an American citizen.

The IJ sustained the denial of Elgebaly’s hardship waivers and ordered that she be 

removed to Egypt. It found Elgebaly’s and her family’s testimony not credible because their 

testimony contradicted both Muhammad’s testimony and Youssef’s own prior sworn statements, 

and because Elgebaly offered insufficient corroboration of her story. Based on Muhammad’s 
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credible testimony, the IJ concluded that Elgebaly had not married Muhammad in good faith, 

rendering her ineligible for either hardship waiver. Specifically, Muhammad testified that he and 

Elgebaly never lived together as a married couple, were not intimate, and never shared a joint 

bank account. Further, Elgebaly left the United States for Egypt for a months-long trip just one 

year into her marriage with Muhammad, and, when she returned, did not need to retrieve any 

belongings from Muhammad, indicating that she did not reside with him while in the United 

States. Finally, the IJ noted that Elgebaly kept her passport at Youssef and Tag’s home, 

indicating that she lived there, rather than with Muhammad. The IJ also rejected Elgebaly’s 

claim that Muhammad’s decision to withdraw the joint petition waiver subjected her to extreme 

cruelty, noting that she had not proffered any supporting documentation or professional 

evaluation to support this charge.

2. Board of Immigration Appeals

Elgebaly appealed to the BIA, which dismissed the appeal. The BIA adopted and 

affirmed the IJ’s decision, finding that the IJ committed no clear error in his credibility 

assessment or conclusion that Elgebaly had not shown that she entered the marriage in good 

faith. Additionally, despite Elgebaly’s arguments, the BIA found that the IJ conducted the 

hearing in a fair manner without any hint of judicial bias.

Elgebaly then retained counsel and filed a timely motion to reopen proceedings with the 

BIA. See 8 U.S.C. § 1229a(c)(7). She claimed that because she proceeded pro se during the 

earlier proceedings, she had not been able to present all of the available evidence supporting her 

request for a hardship waiver. In support of her motion, she attached: (1) a statement detailing 

the testimony she would have given at the proceeding had she been represented by counsel; 

(2) photographs of her and Muhammad and text messages between the couple; and 

(3) documents explaining Egyptian religious and cultural practices in an attempt to show that her 

marriage with Muhammad was consistent with these practices. In her statement, she claimed 

that the family of her former husband—who she had married in Egypt and since became 

deceased—had been hostile to her after she brought her son to the United States and permitted 

him to marry a Shia, rather than Sunni, Muslim woman. She claimed that this hostility made her 

afraid to return to Egypt. 
Nos. 23-3354/3877 Elgebaly v. Garland Page 6

The BIA denied her motion to reopen. It found that her removal proceedings were not 

fundamentally unfair in a manner that would have prevented her from presenting much of the 

evidence attached to her motion to reopen, despite her pro se status. It further determined that 

she had failed to present any new, material evidence that would warrant reopening the case. 

Elgebaly filed a second petition for review of the BIA’s denial of her motion to reopen.

II. DISCUSSION

A. Denial of Hardship Waivers

1. Jurisdiction

A hardship waiver to the joint petition requirement is comprised of two steps. First, the 

Secretary of Homeland Security, acting through immigration officials, must assess whether a 

petitioner is eligible for a hardship waiver—that is, whether she meets any of the statutory 

criteria for a hardship waiver. 8 U.S.C. § 1186a(c)(4); see also Johns v. Holder, 678 F.3d 404, 

406 (6th Cir. 2012); cf. Wilkinson v. Garland, 601 U.S. 209, 212–13 (2024). Second, if a 

petitioner is eligible for a hardship waiver, the Secretary decides whether to exercise his 

discretion to grant the waiver. 8 U.S.C. § 1186a(c)(4); see also Johns, 678 F.3d at 406.

Our review of the denial of hardship waivers is constrained. We do not have jurisdiction 

to review the second-step discretionary decision to deny the hardship waiver. See 8 U.S.C. 

§ 1252(a)(2)(B)(ii); see also Johns, 678 F.3d at 406; cf. Wilkinson, 601 U.S. at 225 n.4. And we 

may only review the first-step determination that a petitioner is eligible for a hardship waiver to 

the extent that the petitioner presents “questions of law.” 8 U.S.C. § 1252(a)(2)(D). In 

particular, we may not review the factual determinations of “what evidence is credible and the 

weight to be given that evidence.” Id. § 1186a(c)(4).

2. Standard of Review

Because the BIA adopted the IJ’s decision and added additional commentary, “we 

directly review the decision of the IJ while also considering the additional comments made by 

the [BIA].” Yeremin v. Holder, 738 F.3d 708, 714 (6th Cir. 2013) (alteration in original) 

(citation omitted). “We review factual findings under the highly deferential substantial-evidence 
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test, meaning those findings stand unless any reasonable adjudicator would be compelled to 

disagree.” Marqus v. Barr, 968 F.3d 583, 588 (6th Cir. 2020) (citations and internal quotation 

marks omitted). We review legal conclusions de novo. Id. at 589.

3. Analysis

Elgebaly brings multiple challenges to her immigration proceedings. She first claims that 

the IJ’s credibility determination was so cursory that it does not permit meaningful judicial 

review. She further argues that the substantial evidence does not support the IJ’s and BIA’s 

(collectively, the “agency”) findings that she did not marry in good faith and that she did not 

experience extreme cruelty in her marriage. Finally, she claims that the IJ did not sufficiently aid 

her in developing the record in the immigration proceedings while she proceeded pro se.

a. Credibility Determination

Elgebaly first claims that the agency’s credibility assessments were so cursory that they 

failed to provide a record upon which we could conduct meaningful judicial review. The BIA 

did not offer any additional substantive analysis of the credibility of witnesses, so we review 

only the IJ’s decision. See Yeremin, 738 F.3d at 714. Because Elgebaly brings a procedural 

challenge to the sufficiency of the IJ’s findings below, she presents a legal question that we have 

jurisdiction to review. See Vasquez-Rivera v. Garland, 96 F.4th 903, 908–09 (6th Cir. 2024). 

Although we have jurisdiction to review this argument, it is unlikely that we could find a 

legal error in a cursory credibility determination in a hardship waiver denial. Generally, when 

we consider whether an IJ or the BIA failed to make sufficient findings to permit meaningful 

judicial review, it is because we have some review to conduct. See, e.g., Vasquez-Rivera, 96 

F.4th at 909 (“So long as . . . we can engage in ‘meaningful judicial review under our usual 

substantial-evidence test,’ there is no basis to conclude that the BIA committed a legal error.” 

(quoting Palucho v. Garland, 49 F.4th 532, 539–40 (6th Cir. 2022)). But when reviewing a 

denial of a hardship waiver, we may not review the “determination of what evidence is credible.” 

8 U.S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii). Thus, it is not clear what, if any, legal error could be 

committed by an allegedly cursory credibility determination in a hardship waiver analysis when 

we could not review even an extensive, well-supported credibility determination.
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Even if this argument would theoretically make a difference in a petitioner’s challenge to 

a hardship waiver denial, the IJ’s credibility determination in this case was not so cursory as to 

prohibit meaningful judicial review. Records from an immigration proceeding permit sufficient 

judicial review when the agency “consider[s] the issues raised[] and announce[s] its decision in 

terms sufficient to enable a reviewing court to perceive that it has heard and thought and not 

merely reacted.” Scorteanu v. I.N.S., 339 F.3d 407, 412 (6th Cir. 2003) (citation omitted).

In this case, the IJ met these reasonable requirements. The IJ found that the testimony of 

Elgebaly and her witnesses fundamentally contradicted that of Muhammad, her former spouse. 

Specifically, the IJ highlighted that Muhammad’s testimony that he never lived with or was 

intimate with Elgebaly contradicted Elgebaly’s testimony about these issues. Further, the IJ 

noted that Elgebaly’s brother-in-law, Youssef, testified that he did not pay for Muhammad’s 

initial trip to Egypt to meet Elgebaly, whereas Muhammad testified that Youssef did pay for the 

trip. Contrary to Elgebaly’s suggestion, the IJ did not merely acknowledge the inconsistencies in 

testimony and choose to believe Muhammad over Elgebaly and her witnesses. Instead, the IJ 

explained that Elgebaly had provided no documentation supporting her testimony that she moved 

in with Muhammad, and that Youssef had admitted in a previous sworn statement that he had, in 

fact, paid for Muhammad’s trip to Egypt. The IJ thus emphasized the inconsistencies in the 

testimony of witnesses and explained the basis for believing Muhammad’s version of the story. 

This explanation provides us with a sufficient record for meaningful judicial review.

Elgebaly claims that the IJ erred by failing to explicitly consider other factors that 

supported finding her and her witnesses credible. For example, she criticizes the IJ for failing to 

consider that Elgebaly’s testimony was consistent with other witnesses and supported by 

evidence, and that the over ten year gap between the marriage and the immigration court 

proceedings may have caused certain explainable memory lapses. But the IJ’s failure to 

explicitly discuss these additional factors in its analysis does not constitute legal error because 

we do not require the agency to “discuss each piece of evidence individually” to be satisfied that 

a full record is available for review. Saleh v. Barr, 795 F. App’x 410, 419 (6th Cir. 2019). 

Moreover, the immigration statute emphasizes that the credibility determination is a “totality of 

the circumstances” inquiry in which an IJ is not limited to assessing any specific set of factors. 
Nos. 23-3354/3877 Elgebaly v. Garland Page 9

8 U.S.C. § 1229a(c)(4)(C). Thus, the IJ did not apply an incorrect legal standard, and did not 

otherwise legally err in its credibility analysis. Instead, Elgebaly’s arguments, although cast as a 

legal challenge to the sufficiency of the IJ’s findings, boil down to factual disagreements with the 

IJ’s credibility analysis. And we are without jurisdiction to consider whether the IJ substantively 

erred in the credibility determination. 8 U.S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii).

b. Substantial Evidence

Elgebaly next claims that the denial of her hardship waivers was not supported by 

substantial evidence. We may review generally whether substantial evidence supports a finding 

that a petitioner is ineligible for a hardship waiver; however, because the statute constrains our 

review, we “must accept the [BIA’s] decisions about the weight and credibility of the evidence in 

doing so.” Johns, 678 F.3d at 407. Because the agency premised its denial of Elgebaly’s 

hardship waivers on her lack of credibility and on Muhammad’s credible testimony, she faces a 

demanding standard to overturn the denial based on a lack of substantial evidence. See id. 

(“[O]ur constraint in second guessing weight and credibility decisions will make it very difficult, 

if not impossible, to overrule a hardship-waiver decision premised on lack of credibility.”). 

Accepting the agency’s credibility determination and weighing of the evidence, we may not 

overturn the agency’s decision unless we conclude that “any reasonable adjudicator would be 

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Bi Qing Zheng v. 

Lynch, 819 F.3d 287, 294 (6th Cir. 2016).

To establish her eligibility for both hardship waivers, Elgebaly must have shown that she 

entered her marriage in good faith. 8 U.S.C. § 1186a(c)(4)(B)–(C). Ultimately, the agency 

needed to determine whether Elgebaly and Muhammad “intended to establish a life together at 

the time they were married.” Ayyoub v. I.N.S., 93 F. App’x 828, 832 (6th Cir. 2004) (citations 

and internal quotation marks omitted). To the extent it informs the intent of the couple at the 

initiation of the marriage, the agency can consider actions taken during or after the marriage as 

well. Id.

As an initial matter, although Elgebaly casts her arguments as traditional substantial

evidence arguments, she really challenges the weight given by the agency to certain pieces of 
Nos. 23-3354/3877 Elgebaly v. Garland Page 10

evidence. For example, she claims that the agency failed to sufficiently consider how her 

cultural and religious practices shaped her marriage, as well as photographs, text messages, and 

other documents that purportedly corroborated Elgebaly and her witnesses’ version of events. 

These disputes with how the agency weighed the evidence ignore the jurisdictional limits on our 

review of a denial of a hardship waiver. 

Accepting the agency’s assessment of the credibility of witnesses and weight of the 

evidence as we must, substantial evidence supported the agency’s finding that Elgebaly did not 

enter her marriage in good faith. Muhammad testified that he believed Elgebaly married him to 

become a United States citizen. Based on specific facts elicited at the hearing, the IJ found this 

statement credible. Primarily, the IJ recounted Muhammad’s testimony that Elgebaly never lived 

with him during their marriage and that the couple was never intimate. Other than Elgebaly’s 

driver’s license listing Muhammad’s home address as her address, Elgebaly submitted no 

corroborating documents to support her testimony that she lived with Muhammad during the 

marriage. Further, it appeared that Elgebaly did not keep her belongings at Muhammad’s home, 

as she was able to seamlessly move in with relatives after her return from Egypt. Elgebaly also 

left the country for six months only a year into her marriage with Muhammad. Finally, the IJ 

acknowledged that Elgebaly had previously told immigration authorities that she never 

comingled her assets or shared a joint bank account with Muhammad. All of these facts support 

the agency’s finding that Elgebaly did not marry Muhammad in good faith. See Al-Saka, 904 

F.3d at 431; Johns, 678 F.3d at 407–08. Given that no other evidence compels an alternate 

conclusion, we may not overturn the agency’s finding. Elgebaly therefore cannot succeed on her 

challenge to the denial of either of her hardship waivers.

Although we need not reach the issue, substantial evidence also supported the agency’s 

finding that Elgebaly did not experience extreme cruelty during her marriage, a requirement for 

eligibility under the first hardship waiver that she submitted. 8 U.S.C. § 1186a(c)(4)(C). 

Elgebaly did not claim that she suffered physical abuse but argued that Muhammad’s withdrawal 

of the joint petition constituted extreme cruelty. Substantial evidence supported the finding that 

this did not constitute extreme cruelty. Indeed, other than Elgebaly’s own testimony, she offered 

no other evidence, such as documents or professional evaluations, that detailed how 
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Muhammad’s decision constituted the type of “mental injury” or “[p]sychological . . . abuse” 

contemplated by the statute and its regulations. See 8 C.F.R. § 1216.5(e)(3)(i); see also id.

§ 1216.5(e)(3)(iv) (“[A]ll waiver applications based upon claims of extreme mental cruelty must 

be supported by the evaluation of a professional recognized by the [agency] as an expert in the 

field.”). Elgebaly’s arguments against the IJ’s finding that she did not suffer extreme cruelty 

again amount to impermissible challenges to the agency’s weighing of the evidence, and do not 

compel a different finding.

c. Failure to Develop the Record

Elgebaly further argues that the IJ failed to assist her in developing the record while she 

proceeded pro se. “[T]o provide a fundamentally fair proceeding” under the Fifth Amendment’s 

Due Process Clause, “immigration judges are bound by the recognized duty to help pro se parties 

develop the record.” Mendoza-Garcia v. Barr, 918 F.3d 498, 505 (6th Cir. 2019). This means 

that IJs “must scrupulously and conscientiously probe into, inquire of, and explore for all the 

relevant facts,” and “must be especially diligent in ensuring that favorable as well as unfavorable 

facts and circumstances are elicited.” Id. at 504 (citation omitted). In this case, the IJ adequately 

discharged this task. He took the lead in eliciting testimony from all witnesses and offered 

Elgebaly and her adult son (who is fluent in English) the opportunity to ask questions as well. 

He not only “posed open-ended questions that could elicit relevant responses,” but he asked 

specific follow-up questions that clearly delineated a timeline from which we have a clear 

understanding of the facts and circumstances of the case. Id. at 507. And contrary to other cases 

in which the “superficial quality of the questioning” spanning less than 15 pages of transcribed 

testimony deprived a petitioner of a full and fair hearing, the IJ in this case dutifully developed 

the record over almost 300 pages of testimony. Id. (quoting Lashley v. Sec’y of Health & Hum. 

Servs., 708 F.2d 1048, 1053 (6th Cir. 1983)).

On appeal, Elgebaly faults the IJ for failing to elicit testimony about specific topics. For 

example, she argues that the IJ failed to ask questions relating to Elgebaly’s strict religious and 

cultural practices that shaped her marriage to Muhammad and failed to impeach Muhammad’s 

credibility. She also claims that the IJ did not inform her of the type of evidence she should 

submit to establish her good faith marriage claim. Many of these assertions are factually 
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incorrect. The IJ did question Elgebaly’s son about whether her marriage was in line with her 

cultural practices. And the IJ repeatedly advised Elgebaly of her ability to submit supporting 

documents to the court and granted multiple continuances to allow Elgebaly time to get an 

attorney. More broadly, although an IJ must assist a petitioner in developing the record, an IJ 

does not serve as petitioner’s counsel. See Richardson v. Perales, 402 U.S. 389, 410 (1971) 

(acknowledging that administrative law judges do not “act as counsel”); see also Mei Zhu Huang 

v. Holder, 577 F. App’x 587, 592 (6th Cir. 2014). In this case, the IJ sufficiently developed the 

record for our review, and ably discharged the role that the Constitution requires he play. 

B. Motion to Reopen

Elgebaly also challenges the BIA’s denial of her motion to reopen the proceedings. We 

review a denial of a motion to reopen for an abuse of discretion. Zhang v. Mukasey, 543 F.3d 

851, 854 (6th Cir. 2008). The BIA abuses its discretion if its decision “was made without a 

rational explanation, inexplicably departed from established policies, or rested on an 

impermissible basis such as invidious discrimination against a particular race or group.” Dieng 

v. Barr, 947 F.3d 956, 960–61 (6th Cir. 2020) (citation omitted).

The BIA may deny a motion to reopen for any of at least three independent reasons: 

(1) the motion does not “establish[] a prima facie case for the underlying substantive relief 

sought”; (2) the motion does not present “previously unavailable, material evidence”; or (3) if a 

movant seeks discretionary relief, the movant would not be entitled to such relief. I.N.S. v. 

Abudu, 485 U.S. 94, 104–05 (1988). Because of the strong public interest in the finality of 

immigration proceedings, motions to reopen are generally “disfavored.” Id. at 107. 

In this case, the BIA determined that the evidence proffered in Elgebaly’s motion to 

reopen was either not new or not material. We “strictly” construe the requirement that evidence 

could not have been presented at the prior hearing. Sakhawati v. Lynch, 823 F.3d 852, 858 (6th 

Cir. 2016). The text messages and photographs submitted by Elgebaly in her motion to reopen 

were either already submitted in prior proceedings or were available to her in the prior 

proceedings. Additionally, although her statement alleged that she feared returning to Egypt 

because of threats from her deceased husband’s family, some of these threats were made while 
Nos. 23-3354/3877 Elgebaly v. Garland Page 13

she was married to Muhammad. Rather than explain these threats in the prior proceedings, she 

expressly testified before the IJ that she had “no specific fear” of returning to Egypt. 

Administrative Record, No. 23-3877, ECF No. 8-2, Page ID #403. On appeal, Elgebaly argues 

that, although much of this information was available to her during the prior hearings, it was 

practically unavailable because of her pro se status. But as the BIA found, nothing rendered the 

proceedings before the IJ or the BIA fundamentally unfair such that she would have been 

prevented from presenting the available evidence merely because she proceeded pro se. The 

BIA therefore did not abuse its discretion in finding that the evidence in Elgebaly’s motion to 

reopen was either already submitted or could have been submitted in prior proceedings.

The BIA also did not err in concluding that any new evidence presented was immaterial. 

New evidence is material if it is “likely [to] change the result in the case.” Yousif v. Garland, 

53 F.4th 928, 936 (6th Cir. 2022) (alteration in original) (quoting Hernandez-Perez v. Whitaker, 

911 F.3d 305, 321 (6th Cir. 2018)); see also Jado v. Wilkinson, 847 F. App’x 278, 284 (6th Cir. 

2021). Elgebaly’s reports of Egyptian culture and Muslim religious customs concerning 

marriage did not undermine the previous finding that she did not marry in good faith. 

Specifically, none of this evidence rebutted either Muhammad’s testimony that the marriage was 

not in good faith, that they never lived together, or that they never shared a joint bank account.

Further, although some of Elgebaly’s statement submitted with her motion contained new 

evidence, the BIA also did not err in finding this evidence immaterial. Elgebaly claimed to be 

afraid of her deceased husband’s family in Egypt in part because of threats they made after her 

son’s marriage to a non-Sunni Muslim. Although this happened after the immigration 

proceedings, thus making it at least new evidence, the BIA did not abuse its discretion in finding 

that it was immaterial to her hardship waivers because the evidence did not address whether her 

marriage to Muhammad was in good faith.1 In all, the BIA did not abuse its discretion in 

denying Elgebaly’s motion to reopen.

1To the extent that this information could be construed as an attempt to seek alternative relief from 

removal, such as asylum, the BIA properly concluded that Elgebaly’s request was procedurally defaulted because 

she did not append an asylum application to her motion to reopen or otherwise seek removal relief in another form 

from the BIA. See Bi Feng Liu v. Holder, 560 F.3d 485, 491 (6th Cir. 2009) (finding a motion to reopen 
Nos. 23-3354/3877 Elgebaly v. Garland Page 14

C. Constitutionality of Immigration Proceedings

Finally, Elgebaly mounts a constitutional challenge to the structure of immigration court 

proceedings. Specifically, she points us to the Supreme Court case, SEC v. Jarkesy, which 

considered whether specific administrative proceedings violated the Seventh Amendment right to 

a jury trial in suits at common law. 144 S. Ct. 2117 (2024). At the time of briefing, the Supreme 

Court had not released its decision in Jarkesy, so Elgebaly merely indicated that immigration 

proceedings without a jury could violate the Seventh Amendment depending on the Court’s 

decision.

In the interim, the Supreme Court has released its decision in Jarkesy, meaning we can 

easily dispose of Elgebaly’s suggestion. The Court held that enforcement proceedings in the 

Securities and Exchange Commission (“SEC”) that sought civil penalties violated defendants’ 

Seventh Amendment right to a jury trial. See id. at 2127–28. In doing so, the Court explained 

that this was because the SEC enforcement proceedings at issue affected the private rights of 

defendants, meaning adjudication could not be removed from an Article III court. Id. at 2132, 

2136. By contrast, it explained that initial adjudications of public rights could be conducted by 

the executive branch. Id. at 2132. And it explicitly referenced immigration as just such an 

example of a matter concerning public rights. Id. at 2132–33; see also Crowell v. Benson, 285 

U.S. 22, 50–51 (1932) (listing immigration as an issue concerning public rights). Thus, to the 

extent that Elgebaly continues to press this constitutional challenge after the release of the 

Court’s decision in Jarkesy, it would be unsuccessful because Jarkesy clearly does not implicate 

immigration adjudication.

III. CONCLUSION

For the reasons stated above, we DENY Elgebaly’s petitions for review.

procedurally defaulted for failing to comply with 8 C.F.R. § 1003.23(b)(3) by failing to attach an application for 

asylum). Notably, Elgebaly does not challenge this specific reasoning on appeal.