Gitau v. Sessions, 878 F.3d 429

Gitau, a Kenyan national, obtained conditional lawful permanent resident status after marrying U.S. citizen Undray Johnson in 2004 and later divorced.
She failed to jointly file Form I-751 to remove conditions and sought a waiver under 8 U.S.C. § 1186a(c)(4) and 8 C.F.R. § 1216.5, asserting (1) she entered the marriage in good faith and (2) her removal would cause extreme hardship.
USCIS denied her initial waiver petition; Gitau renewed the waiver request in removal proceedings before an IJ. The IJ found her testimony not credible, relied on documentary inconsistencies, and denied relief. The BIA adopted and affirmed the IJ.
Key contested evidentiary points included inconsistent statements about courtship length, wedding attendees, household composition, and the date of separation; documentary evidence (tax returns, bills) was inconclusive or postdated the claimed separation.
The IJ/BIA concluded hardship evidence largely fell outside the statutory relevant timeframe for conditional residence; remaining hardship evidence did not demonstrate hardship beyond that normally attendant to removal.

Issue	Gitau's Argument	Government's Argument	Held
Whether Gitau married in good faith (credibility and corroboration)	Testimony and supporting affidavits/documents show she intended to establish a life with Johnson.	IJ credibility findings and documentary inconsistencies show she failed to prove good‑faith marriage.	Court upheld BIA/IJ: substantial evidence supports adverse credibility finding and denial of waiver on good‑faith ground.
Whether extreme hardship waiver is reviewable and/or proven	Extreme hardship claim is reviewable; evidence shows removal would cause extreme hardship.	Gov't: jurisdiction lacking over discretionary hardship determination; alternatively, hardship not demonstrated.	Court: threshold eligibility questions reviewable; BIA/IJ decision denying extreme hardship supported by substantial evidence.

Guerrero v. Holder, 667 F.3d 74 (1st Cir.) (BIA adoption of IJ decision reviewed)
Valdez v. Lynch, 813 F.3d 407 (1st Cir.) (good‑faith marriage standard: intent to establish life together)
Cho v. Gonzales, 404 F.3d 96 (1st Cir.) (courts may review legal eligibility questions though the grant of discretionary relief is unreviewable)
Rivas‑Mira v. Holder, 556 F.3d 1 (1st Cir.) (substantial evidence standard for credibility review)
Chhay v. Mukasey, 540 F.3d 1 (1st Cir.) (substantial evidence deferential review explained)
Jabri v. Holder, 675 F.3d 20 (1st Cir.) (deference to agency credibility findings not unlimited)
Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir.) (issues not argued in merits are waived)
Gebremichael v. INS, 10 F.3d 28 (1st Cir.) (distinguishing review standards for eligibility determinations vs. discretionary rulings)