Thawatchai Foythong v. Eric Holder, Jr.
743 F.3d 1051
6th Cir.2014Background
- Thawatchai Foythong, a Thai citizen, entered the U.S. in 2001 on a visitor visa and overstayed.
- In 2004 he married U.S. citizen Nanette Langevin; DHS found significant discrepancies in their interviews and deemed the marriage a sham for immigration purposes; Langevin withdrew the petition and the marriage later ended.
- In 2010 Foythong married U.S. citizen Petcharat Moi Clark and sought adjustment of status; DHS denied the new petition because he remained married under Thai law and because of the prior finding of a sham marriage to Langevin.
- An immigration judge and the Board of Immigration Appeals (BIA) denied relief and ordered removal; Foythong moved to reopen in 2013, submitting evidence of the bona fides of his marriage to Clark and a purported Thai divorce from his first wife.
- The BIA denied the motion to reopen as unlikely to succeed given the prior sham-marriage finding; Foythong petitioned for review in the Sixth Circuit.
- The Sixth Circuit affirmed, holding that 8 U.S.C. § 1154(c) bars adjustment based on a subsequent marriage after a prior finding of marriage entered into to evade immigration laws, and Foythong failed to rebut the prior finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior finding of a sham marriage bars all future marriage-based adjustments of status | Foythong argued his later bona fide marriage to Clark entitles him to adjust status despite the prior finding | Government argued § 1154(c) mandates denial of any future marriage-based petitions after a sham-marriage finding | Held: § 1154(c) is a one-strike bar; prior sham-marriage finding precludes adjustment based on later marriage |
| Who bears burden to prove eligibility for relief from removal | Foythong asserted government must prove his second marriage was fraudulent | Government relied on REAL ID Act allocation: alien must prove eligibility for relief | Held: Alien bears burden to prove eligibility; Foythong failed to overcome prior finding |
| Whether the BIA abused discretion in denying motion to reopen under its precedent (Ilic-Lee / Velarde-Pacheco standards) | Foythong argued the BIA misapplied its reopening standard and should have found a reasonable likelihood of success based on new evidence | Government argued there was no reasonable likelihood of success because § 1154(c) barred relief and Foythong presented no evidence rebutting the sham finding | Held: No abuse of discretion; reopening properly denied because statutory bar made success unlikely and applicant failed to rebut prior finding |
| Effect of purported foreign/consular divorce on eligibility | Foythong claimed he had divorced his first wife and thus Clark marriage should be recognized | Government argued Michigan does not recognize consular divorces and DHS reasonably rejected the divorce’s effect | Held: The consular divorce was ineffective for Michigan recognition and did not overcome statutory bar |
Key Cases Cited
- Ettienne v. Holder, 659 F.3d 513 (6th Cir. 2011) (one prior sham-marriage finding bars subsequent marriage-based adjustment)
- Ilic-Lee v. Mukasey, 507 F.3d 1044 (6th Cir. 2007) (standard for reopening: reasonable likelihood that statutory requirements for relief are satisfied)