Kinisu v. Holder
2013 U.S. App. LEXIS 15867
1st Cir.2013Background
- Emmanuel Kinisu, a Kenyan national, obtained conditional permanent residence in 2003 based on marriage to U.S. citizen Theresa Johnson; they divorced in 2006.
- Kinisu filed Form I-751 in 2008 seeking waiver of the joint-filing requirement to remove conditions, claiming the marriage was bona fide but ended in divorce.
- At USCIS interview Kinisu submitted limited evidence: a tenancy-at-will dated 2005, a property manager letter, three joint bank statements from 2005, tax/employment documents, and wedding photos.
- USCIS denied the petition in 2010, citing inconsistencies, lack of joint assets/commingling, no affidavits from third parties, and no post-wedding photos; termination of residence followed and a Notice to Appear issued.
- At removal proceedings before the IJ, Kinisu testified but produced few additional corroborating documents; the IJ found his evidence and explanations insufficient and denied the waiver while granting voluntary departure.
- The BIA adopted and affirmed the IJ’s decision; Kinisu petitioned for review to the First Circuit contesting the IJ’s legal standard and evidentiary weighting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ applied incorrect legal standard by treating third-party affidavits as required evidence | Kinisu: IJ treated affidavits as mandatory rather than one admissible form of evidence | Government: IJ properly weighed evidence under regulations and precedent | Court: Issue unexhausted before BIA; no jurisdiction to review |
| Whether IJ gave insufficient weight to Kinisu's testimony and placed undue emphasis on documentary gaps | Kinisu: IJ undervalued his testimony and overemphasized missing documents | Government: IJ reasonably discounted testimony given weak corroboration and inconsistencies | Court: Substantial-evidence supports IJ; testimony and explanations were unconvincing |
| Whether record compels finding marriage entered in good faith | Kinisu: Marriage was bona fide despite limited documentation | Government: Record lacks typical indicia of bona fide marriage (commingling, joint assets, affidavits) | Court: Record does not compel contrary finding; denial affirmed |
| Whether IJ properly considered totality of evidence when denying waiver | Kinisu: IJ failed to credit reasonable explanations for gaps | Government: IJ evaluated credibility and plausibility; considered testimony and documents | Court: IJ gave reasoned consideration; decision supported by substantial evidence |
Key Cases Cited
- Chhay v. Mukasey, 540 F.3d 1 (1st Cir. 2008) (failure to raise argument before BIA precludes court review)
- Albathani v. INS, 318 F.3d 365 (1st Cir. 2003) (review of BIA orders and adopted IJ decisions)
- Yatskin v. INS, 255 F.3d 5 (1st Cir. 2001) (substantial-evidence standard for IJ factual findings)
- Mediouni v. INS, 314 F.3d 24 (1st Cir. 2002) (IJ findings conclusive if supported by reasonable, substantial, probative evidence)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (standard on administrative factual findings)
- McKenzie-Francisco v. Holder, 662 F.3d 584 (1st Cir. 2011) (burden on alien to show marriage entered in good faith)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir. 2007) (IJ must give reasoned consideration to evidence as a whole)
- Weng v. Holder, 593 F.3d 66 (1st Cir. 2010) (IJ may assess plausibility and credibility of explanations)
- Sunoto v. Gonzales, 504 F.3d 56 (1st Cir. 2007) (exhaustion of administrative remedies requirement)
- Makhoul v. Ashcroft, 387 F.3d 75 (1st Cir. 2004) (failure to press argument before agency forecloses judicial review)