Wissam Al-Saka v. Jefferson Sessions, 904 F.3d 427

Background

Petitioner Wissam Al-Saka, a Lebanese national, obtained conditional permanent residency in 2001 based on marriage to U.S. citizen Hanadi Hashem; the residency required the marriage to last two years.
The couple separated quickly: religious divorce weeks after arrival, Lebanese legal divorce in Aug. 2001, and Michigan annulment months later (annulment found no marital cohabitation).
Al-Saka stayed in the U.S., remarried in Lebanon in Jan. 2003, and in Feb. 2003 sought an I-751 waiver because he could not file the required joint petition with Hashem.
At the removal hearing, the immigration judge found Al-Saka not credible, concluded the marriage was not entered in good faith, denied the waiver, and found him removable; the Board of Immigration Appeals affirmed.
Al-Saka appealed, arguing (1) error in finding no good-faith marriage, (2) the Board should have exercised discretion to waive removal despite fraud, and (3) ineffective assistance of counsel requiring remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether substantial evidence supports finding Al-Saka did not enter marriage in good faith	Al-Saka argued the Board ignored or undervalued evidence (photos, affidavits, testimony) and improperly weighed credibility	Government argued credibility and weight-of-evidence determinations are discretionary and supported by record inconsistencies (I-751 form, annulment, travel, lack of joint assets)	Held: Substantial evidence supports the Board; credibility and weight determinations are committed to agency discretion and upheld
Whether the Attorney General may waive removability for marriage fraud and, if so, whether discretion should have been exercised to allow Al-Saka to remain	Al-Saka urged the court to find waiver appropriate despite fraud	Government: Even if waiver authority exists, the decision to grant relief is discretionary and unreviewable here	Held: Court need not resolve statutory question; even assuming waiver power exists, denial was a discretionary decision the court cannot review and would not change outcome
Whether Al-Saka received ineffective assistance of counsel requiring remand (and whether such claims are cognizable under the Fifth Amendment)	Al-Saka claimed counsel erred by not subpoenaing ex-wife and mother or hiring an Islamic-marriage expert, and suggested a due process violation	Government: Counsel's choices were tactical, not deficient under Lozada/Compean; no prejudice shown. Also, Fifth Amendment does not create a freestanding right to effective counsel in removal proceedings	Held: Board properly found no Lozada-compliant ineffective assistance or prejudice; Fifth Amendment does not independently guarantee right to effective private counsel in immigration removal proceedings, though IJ must guard against proceedings corrupted by government actors

Key Cases Cited

Khalili v. Holder, 557 F.3d 429 (6th Cir.) (standard for reviewing BIA credibility and weight determinations)
Johns v. Holder, 678 F.3d 404 (6th Cir.) (limits on judicial review of discretionary agency credibility/weight findings)
Singh v. Gonzales, 451 F.3d 400 (6th Cir.) (discretionary decisions to grant waivers are typically unreviewable)
INS v. Bagamasbad, 429 U.S. 24 (U.S.) (doctrine against deciding unnecessary statutory questions)
INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S.) (removal proceedings are civil; no Sixth Amendment right to counsel)
Zadvydas v. Davis, 533 U.S. 678 (U.S.) (due process protections in immigration context)
Strickland v. Washington, 466 U.S. 668 (U.S.) (ineffective-assistance prejudice standard referenced for proposed agency rulemaking)
Amadou v. INS, 226 F.3d 724 (6th Cir.) (examples where IJ must protect fairness of proceedings)
Sako v. Gonzales, 434 F.3d 857 (6th Cir.) (discussing Lozada framework and relation to BIA practice)
Mezo v. Holder, 615 F.3d 616 (6th Cir.) (citing Board precedent in ineffective-assistance contexts)