Felicia Zeah v. Eric H. Holder, Jr., 744 F.3d 577

Background

Felicia Zeah, a Nigerian national, conceded removability but sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming removal would cause exceptional and extremely unusual hardship to her U.S.-citizen minor son, J.R.
Zeah married a U.S. citizen in 1989 (found to be a sham) and later married Wilson Zeah in 1999; she has a minor son (born 2000) with learning disabilities for whom she is the primary caretaker.
The IJ held two days of hearings: admitted testimony from Zeah, her husband, adult son, and Dr. Ajovi Scott-Emuakpor (pediatrics expert); excluded in‑court testimony from J.R. (age nine) and rejected cumulative testimony from adult daughter Kafayat, allowing offers of proof instead.
The IJ denied cancellation, finding Zeah failed to show exceptional and extremely unusual hardship to J.R., and alternatively denied relief in the exercise of discretion because of the prior sham marriage; the BIA affirmed the hardship ruling and upheld exclusion of the minor’s testimony.
Zeah petitioned for review raising constitutional and legal challenges to evidentiary exclusions and to the IJ’s discretionary reasoning; the Eighth Circuit reviewed legal and constitutional claims de novo and factual findings for substantial evidence.

Issues

Issue	Zeah's Argument	Government's Argument	Held
Whether the court has jurisdiction to review denial of cancellation of removal and discretionary denials	Zeah framed some complaints as legal/constitutional to preserve review	Denial of cancellation is discretionary and largely unreviewable; only legal/constitutional and nondiscretionary questions are reviewable	Court retained review of Zeah’s legal/constitutional claims but lacked jurisdiction to review purely discretionary weighing of relief (denial for sham marriage)
Exclusion of J.R. and Kafayat testimony	Testimony was material about home life and Zeah’s caregiving; exclusion violated IJ’s duty to develop record and Zeah’s due process rights	Testimony would have been cumulative of credible testimony already admitted; IJ may exclude cumulative evidence	No due process violation: exclusion of cumulative testimony permissible where same facts were credibly testified to by others
Qualification and scope of Dr. Scott’s expert testimony	IJ should have admitted broader expert testimony on treatment and conditions in Nigeria and effects on J.R.	Even if some testimony should have been qualified as expert, any error was not prejudicial because evidence would not have proved exceptional hardship	No reversible error: petitioner failed to show prejudice or that proffered expert evidence was so compelling that no reasonable fact-finder could rule otherwise
Application of legal standard in discretionary denial (sham-marriage factor)	IJ misapplied standards in weighing discretionary relief and BIA erred by not reviewing	Government: discretionary determinations are not reviewable; petitioner’s complaint is an abuse-of-discretion claim dressed as legal error	Court lacks jurisdiction to review the IJ’s exercise of discretion on sham-marriage grounds; claim not reviewable here

Key Cases Cited

Falaja v. Gonzales, 418 F.3d 889 (8th Cir. 2005) (BIA decision is final agency decision subject to appellate review)
Banat v. Holder, 557 F.3d 886 (8th Cir. 2009) (standard of review: legal and constitutional de novo; factual findings for substantial evidence)
Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007) (fairness, not formal evidence rules, governs admissibility in immigration proceedings)
Garcia–Torres v. Holder, 660 F.3d 333 (8th Cir. 2011) (petitioners may not manufacture jurisdiction by recasting discretionary claims as legal or constitutional)
Kinfe v. Ashcroft, [citation="121 F. App'x 675"] (8th Cir. 2005) (no due process violation when IJ excludes cumulative testimony)
Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004) (court may review IJ decision directly but lacks jurisdiction over discretionary denials of relief)