Davis v. Holder, Jr., 802 F.3d 168

Background

Radcliffe Davis, a Jamaican national, obtained conditional permanent residency based on marriage to U.S. citizen Nadine Woodley (married April 19, 2007); USCIS denied his waiver to remove conditions after their divorce, finding insufficient proof the marriage was in good faith.
DHS initiated removal proceedings; Davis conceded removability but sought waiver, adjustment, and voluntary departure. An IJ hearing occurred with Davis as the sole witness.
IJ found Davis’s testimony vague, inconsistent (dates of visits, communications, and why he told a consulate he was single), and insufficiently corroborated by objective documents; DHS introduced unsworn statements from Woodley alleging fraud.
IJ denied the waiver and voluntary departure; BIA affirmed, rejecting new evidence submitted on appeal and denying Davis’s July 2014 motion to remand based on his subsequent 2013 marriage to Marie Bryan for lack of clear and convincing evidence the new marriage was bona fide.
Davis petitioned for review in the First Circuit, arguing (1) procedural/due process errors at the IJ hearing and (2) that substantial evidence supports a finding his marriage to Woodley was bona fide and that the BIA abused discretion in denying remand.

Issues

Issue	Davis's Argument	Government's Argument	Held
Did IJ violate due process by denying use of Davis’s passport to refresh recollection?	Denial prevented meaningful opportunity to present evidence and impaired Davis’s testimony.	IJ acted within broad discretion; passport not offered into evidence and exclusion was not prejudicial.	No due process violation; exclusion not an abuse of discretion and not prejudicial.
Did IJ err in admitting unsworn statements from Woodley without prior submission?	Admission was unfair and violated due process because Davis lacked chance to review/authenticate them.	Admission was within IJ’s discretion; Davis didn’t timely object and IJ weighed their evidentiary weight.	No due process violation; admission permissible and weight for IJ/BIA to determine.
Whether substantial evidence supports denial of waiver (marriage bona fides)?	Testimony and submitted documents show bona fide marriage (cohabitation, joint accounts, shared family life).	Testimony was inconsistent and uncorroborated; documentary evidence lacking or ambiguous—supports finding of sham marriage.	Substantial evidence supports IJ/BIA: marriage not shown to be in good faith.
Whether BIA abused discretion denying motion to remand based on Davis’s subsequent marriage?	New marriage and I-130 filed show new bona fide marriage warranting remand.	Submitted materials are insufficient (no co-mingling, cohabitation, objective corroboration); falls short of clear and convincing showing.	No abuse of discretion; BIA properly denied remand for lack of clear and convincing evidence.

Key Cases Cited

Jing Lin v. Holder, 759 F.3d 110 (1st Cir.) (standard for reviewing BIA adoption of IJ reasoning)
Kinisu v. Holder, 721 F.3d 29 (1st Cir.) (substantial-evidence review of agency findings)
Acevedo-Aguilar v. Mukasey, 517 F.3d 8 (1st Cir.) ("substantial, probative evidence" standard)
McKenzie-Francisco v. Holder, 662 F.3d 584 (1st Cir.) (deference to agency on legal conclusions and requirements for corroboration)
Choeum v. INS, 129 F.3d 29 (1st Cir.) (due process requires notice and meaningful opportunity to be heard)
Muñoz-Monsalve v. Mukasey, 551 F.3d 1 (1st Cir.) (meaningful opportunity to present evidence in removal proceedings)
Sharari v. Gonzáles, 407 F.3d 467 (1st Cir.) (broad IJ discretion over trial procedures and evidence)
Aguilar-Solís v. INS, 168 F.3d 565 (1st Cir.) (scope of IJ trial discretion)
Yongo v. INS, 355 F.3d 27 (1st Cir.) (Federal Rules of Evidence not strictly applied in immigration proceedings)
Chanthou Hem v. Mukasey, 514 F.3d 67 (1st Cir.) (credibility review focuses on specific, cogent reasons tied to record discrepancies)
Kheireddine v. Gonzáles, 427 F.3d 80 (1st Cir.) (corroboration expected when testimony weak)
Cho v. Gonzáles, 404 F.3d 96 (1st Cir.) (examples of evidence that can establish bona fide marriage)
Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir.) (consider record as whole when assessing substantial evidence)
Falae v. Gonzáles, 411 F.3d 11 (1st Cir.) (motions to remand/reopen reviewed for abuse of discretion)