Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Thursday, May 3, 2012

Sixth Circuit on review of bona fide marriage I751 waivers

Johns v. Holder, No. 11-3011 (6th Cir. May 2, 2012) (published)

This case involved the denial of a good faith marriage waiver for an I-751 petition.  The IJ and BIA found that the alien was not credible and did not enter into a bona fide marriage.

On review, the Court held that, under 242(a)(2)(B)(ii) and 216(c)(4), it lacked jurisdiction to review credibility determinations and the weighing of evidence.  It did, however, have jurisdiction to consider legal and constitutional claims, including whether the BIA applied to proper legal test.  The court would not consider questions bearing on how the BIA assessed the evidence.  Under the substantial evidence test, then, the court noted that it would be almost impossible to overrule a hardship waiver denial that was based on an adverse credibility finding.

The court also quickly disposed of a paperwork reduction argument and a request to remand because the BIA sent a signed IJ decision 3 weeks after issuing the briefing schedule.  It should be pretty clear that these arguments are only going to work if there is demonstrable prejudice.

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