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Darif v. Holder

United States Court of Appeals, Seventh Circuit

January 2, 2014

Anouar DARIF, Petitioner,
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Argued Sept. 28, 2012.

Page 330

Mark S. Kocol, Attorney, Chicago, IL, for Petitioner.

Lyle D. Jentzer, Lisa Morinelli, Oil, Department of Justice, Washington, DC, for Respondent.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Anouar Darif, a native and citizen of Morocco, married Dianna Kirklin, a citizen of the United States, and by virtue of the marriage was admitted into the United States as a conditional permanent resident in 2001. But the marriage was a sham. Darif was convicted of marriage fraud and related charges, and the Department of Homeland Security (" DHS" ) initiated proceedings to remove him. An immigration judge (" IJ" ) found Darif removable and rejected all of his arguments for relief. The Board of Immigration Appeals (" BIA" or " Board" ) initially ordered further proceedings,

Page 331

but when the case returned to the BIA after remand, the Board likewise rejected all of Darif's claims for relief from removal.

In his petition for review, Darif presses only his argument for an extreme-hardship waiver pursuant to 8 U.S.C. § 1186a(c)(4). He claims that the IJ was biased and otherwise denied him a full and fair hearing in violation of his right to due process. But regardless of the alleged flaws in the proceedings before the IJ, the BIA independently reviewed Darif's request for a hardship waiver and exercised its discretion to deny it; we have no jurisdiction to review that discretionary determination. See 8 U.S.C. § 1252(a)(2)(B)(ii). Although we may review constitutional claims and questions of law, see id., Darif's due-process argument cannot succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim is recast as a challenge to the legal sufficiency of Darif's hearing under the governing statutes and regulations, Darif was not prejudiced because the BIA gave his hardship claim plenary and independent consideration and denied it in an exercise of its discretion. Accordingly, we deny the petition for review.

I. Background

Darif and Kirklin married in December 2000 in Morocco. Later that month Kirklin submitted an I-130 Petition for Alien Relative, the petition that must be filed to enable an alien spouse to obtain lawful permanent residence status. The approval of Kirklin's petition allowed Darif to obtain the necessary visa to enter the United States, which he did in December 2001.

Because alien spouses married to United States citizens are admitted for permanent residence on a conditional basis, see 8 U.S.C. § 1186a(a)(1), Darif's status in the United States was as a conditional permanent resident. To remove that conditional status, Darif and Kirklin had to comply with a number of requirements prescribed by statute, including jointly filing an I-751 Petition to Remove Conditions on Residence and undergoing a personal interview. See id. § 1186a(c)-(d); Hammad v. Holder, 603 F.3d 536, 538 (9th Cir.2010). Darif and Kirklin initiated the process for removing his conditional status by filing the necessary I-751 petition in September 2003.

At some point evidence emerged that Darif had paid Kirklin $3,000 for the marriage, exposing it as a sham. In 2004 Darif was charged with marriage fraud in violation of 8 U.S.C. § 1325(c), conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C. § 1512(b)(1). A jury convicted Darif on all three counts the following year, and we affirmed his convictions on appeal. See United States v. Darif, 446 F.3d 701 (7th Cir.2006).

An alien spouse's visa may be revoked if it was obtained through marriage fraud, see 8 U.S.C. § 1155; El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir.2004), and marriage fraud is a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G). So in December 2005 the DHS terminated Darif's conditional permanent resident status, see id. § 1186a(b)(1), and initiated removal proceedings the next month. The grounds for removal were threefold: (1) Darif's conditional residency status had been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had committed marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was inadmissible at the time of entry, see id. § 1227(a)(1)(A). Notwithstanding his convictions, Darif continued to deny that his marriage was fraudulent.

Darif and Kirklin filed a number of petitions in an effort to stave ...

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