Fatin Gappy v. Jefferson B. Sessions, III, 710 F. App'x 666

Background

Fatin Gappy, an Iraqi Chaldean Christian, entered the U.S. in 1996 as a fiancée, married a U.S. citizen in 1997, received conditional LPR status, and divorced in 1998. INS later terminated her status after finding the marriage fraudulent.
Removal proceedings charged her with termination of conditional residence and marriage fraud; an IJ found her removable, denied a good-faith waiver, but granted withholding of removal based on risk to Iraqi Christians.
In 2008 Gappy moved to reopen to seek asylum under the Refugee Crisis in Iraq Act; the IJ and BIA denied reopening for failure to show prima facie asylum eligibility.
In 2014 she filed another motion to reopen asserting materially worsened conditions for Iraqi Christians; the IJ denied reopening as conditions were ongoing (not a material change) and alternatively denied asylum in the exercise of discretion because of her marriage fraud.
The BIA affirmed on discretionary grounds, finding her positive equities insufficient to overcome the seriousness of her sham marriage and false adjustment application; the Sixth Circuit denied review, finding no abuse of discretion.

Issues

Issue	Gappy's Argument	Government's Argument	Held
Whether BIA abused discretion in denying motion to reopen to pursue asylum	BIA ignored changed country conditions and positive equities; reopening warranted	BIA reasonably denied reopening because asylum is discretionary and she would not merit a favorable exercise of discretion	Denied; no abuse of discretion (BIA considered equities and explained denial)
Whether granting withholding earlier means current risk should outweigh negative factors for asylum	Withholding shows current risk and should weigh positively in discretionary asylum analysis	Withholding does not automatically require grant of asylum; BIA may treat withholding as a positive factor but still deny in discretion	Denied; BIA permissibly considered withholding as a factor but found equities insufficient
Whether BIA should have taken administrative notice of 1996 State Dept. human-rights report	Report contextualizes motive for alleged marriage fraud and might mitigate seriousness of fraud	Gappy left Iraq in 1994 and testified she had practiced religion there; record does not support claim she married to evade 1996 conditions	Denied; administrative notice unnecessary and claim contradicted by record; relitigation barred of prior IJ findings
Whether other circuits’ remands require remanding here because applicant had withholding but not asylum	Reliance on other circuits where asylum and withholding were considered together suggests remand is warranted	Different procedural posture: here withholding was granted earlier and asylum application was untimely; BIA properly exercised discretion	Denied; procedural differences distinguish this case and BIA did not err

Key Cases Cited

Harmon v. Holder, 758 F.3d 728 (6th Cir.) (reviewing BIA decisions where BIA issues its own opinion)
Bi Feng Liu v. Holder, 560 F.3d 485 (6th Cir.) (motion to reopen reviewed for abuse of discretion)
Allabani v. Gonzales, 402 F.3d 668 (6th Cir.) (abuse-of-discretion standard articulated)
INS v. Abudu, 485 U.S. 94 (U.S.) (agency may deny reopening if movant would not be entitled to discretionary relief)
Gilaj v. Gonzales, 408 F.3d 275 (6th Cir.) (two-step asylum discretionary inquiry)
Perkovic v. INS, 33 F.3d 615 (6th Cir.) (asylum discretionary standard discussion)
Kouljinski v. Keisler, 505 F.3d 534 (6th Cir.) (burden to show favorable exercise of discretion)
Htun v. Lynch, 818 F.3d 1111 (10th Cir.) (marriage fraud is a significant negative factor in discretionary asylum denials)
United States v. Utah Constr. & Mining Co., 384 U.S. 394 (U.S.) (preclusion on relitigation of final administrative determinations)