BUKOLA LOMI OMOWOLE, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
No. 20-2285
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 10, 2021 — DECIDED JULY 29, 2021
Petition for Review of an Order of the Board of Immigration Appeals. No. A055-580-956
ROVNER, Circuit Judge. Bukola Lomi Omowole seeks review of an order of the Board of Immigration Appeals sustaining the findings of two immigration judges that she is both removable from the United States for having procured an entry visa by fraud and not entitled to asylum or withholding of removal. Because the decision of the Board rests on the
I.
Omowole, a native and citizen of Nigeria, married her first husband, Ayebamileru Festus Omowole (“Festus“), in January 2007. Festus had won a diversity lottery visa for admission to the United States in 2006, and Omowole, as his spouse, was eligible for a derivative visa. But by the time the two of them emigrated (separately) to this country in the second half of 2007 they were, by their own account, estranged as a result of Festus‘s disclosure that he had fathered a child with another woman before he married Omowole. Upon arrival in the United States, Omowole settled in Indiana and Festus in California. The two never cohabited in this country as husband and wife. Omowole would later testify that she spoke with her husband on the phone regularly and that she visited him in California for a month. Ultimately, however, they were unable to reconcile, and in 2011, they divorced.
Festus subsequently married the mother of his child. When he then attempted to become a naturalized citizen of the U.S., and at the same time sought lawful permanent resident status for his new wife and his child, the U.S. Citizenship and Immigration Service (“USCIS“) began to investigate whether his marriage to Omowole had been a sham entered into for the purpose of facilitating her entry into the United States. USCIS officer Nai Saelee, of the Fraud Detection and National Security Unit, interviewed Festus in 2013, challenging him persistently as to whether the marriage to Omowole was genuine. Festus ultimately admitted that it was not and
Judge Vinikoor conducted an evidentiary hеaring on Omowole‘s removal at which Omowole, Festus, Omowole‘s brother, and officer Salee testified.
Omowole recounted the circumstances of her marriage and her emigration to the United States: She met Festus in her hometown in Ile-Oluji, Nigeria in February of 2006. They exchanged phone numbers and dated telephonically in the ensuing months because he lived two and half hours away in Lagos. After three months, they became engaged, and they were married before a judge in January 2007, eleven months after they first met. Their mothers attended the wedding along with other family members. The сouple consummated the marriage, and Omowole relocated to Lagos to live with Festus in his apartment there. She did not learn of Festus‘s plan to relocate to the United States, or her own eligibility for a visa as his wife, until after the marriage. She also did not
Omowole acknowledged that her brother had sent Festus and her some money on two occasions—first when they were planning their wedding, and then again after they received their visas and were relocating to the United States—but she denied having offered Festus any money in exchange for her derivative visa.
Omowole‘s brother, Kehinde Akindele, testified that he emigrated to the U.S. from Nigeria in 2010, several years after his sister did. (He too won a lottery for a diversity visa.) Akindele was aware of the circumstances of Omowole‘s marriage to Festus and believed the marriage to be genuine. He had met Festus in September 2006 when Festus was dating his sister, and the two became friends and socialized. Omowole and Festus were married in court, and Akindele was among the family members who attended the wedding. According to Akindele, Omowole and Festus lived together for eight months in Lagos. He confirmed, however, that the couple
Officer Saelee gave testimony concerning the USCIS investigation into the marriage and Festus‘s admission that the marriage was a sham. The marriage was flagged for inquiry based on the issuance of their entry visas and their emigration to the United States shortly after they were married, coupled with the fact that they never lived together in this country. Adding to the suspicion were the immediate relative petitions that Festus subsequently filed on behalf of his son and the child‘s mother: Festus had not disclosed the existence of his child during his initial immigrant visa interview in 2007. When Saelee interviewed Festus in February 2013, Festus initially denied that his marriage to Omowole was a sham, but he ultimately confessed that he entered into the marriage for the purpose of facilitating her entry into the United States. He told Saelee that after he won the lottery for a diversity visa, he was approached several times at work by two men who proposed that, in exchange for reimbursement of his visa fees, he marry someone who would then accompany him to the United States. Festus acknowledged that he was compensated for his visa fees. At the conclusion of the interview, he completed a form affidavit attesting to the sham nature of the marriage.3 Saelee denied having made any promises or threats to Festus.
Finally, Festus, in his testimony, disavowed the signed affidavit he had completed attesting to the fraudulent nature of his marriage to Omowole, averring that he was browbeaten into making the statement by Saelee. Festus testified that he told Saelee half a dozen times that he did not marry Omowole for money, but Saelee promised him that he would arrange citizenship for Festus and permanent resident status for his new wife and child if Festus admitted that his marriage to Omowole had been a sham and threatened Festus with arrest and revocation of his green card if he did not make that admission. “I was pushed to the wall,” Festus testified. A.R. 293.
[W]hatever the truth I told them, they don‘t want to listen. They don‘t want to hear that. [Saelee] рromised me if I do what he want to hear, he is going to do what I want for me. So I ... tell him the, what he want to hear.
A.R. 266–67. Thus, according to Festus, he made up the story about men approaching him with offers of money in exchange for marrying Omowole because that is what Saelee wanted to hear; the officer also told Festus what to say in his written statement.
Festus recalled that after he first met Omowole in 2006 and until their marriage in 2007, the two had spoken by phone frequently and visited one another on the weekends. He
Festus said he did not learn until shortly before he left Nigeria for the United States in 2007 that he had previously fathered a child with another woman; he also denied continuing his relationship with the child‘s mother while he was married to Omowole. When he told Omowole about the child, the marriage deteriorated, and they traveled to the United States separately.
Festus acknowledged that he and Omowole never lived together in the U.S. nor did they visit one another, although they spoke by phone daily. He did buy a plane ticket so that Omowole could visit him in Sacramento, but by his account, the ticket was canceled and she never made the trip. Their divorce became final in 2011. Festus married his second wife after that, although he could not recall the date.
After considering the evidence, Judge Vinikoor found that Omowole‘s marriage was a sham and that she had procured her derivative diversity visa by fraud, rendering her removable from the U.S. The IJ in the first instance found the testimony of Saelee and his statement of findings as to the sham nature of the marriage to be credible and accorded them “substantial weight.” A.R. 517. At the same time, the IJ granted only “limited weight” to the testimony of Omowole and Festus, which he found to be less credible. A.R. 518. In support of this adverse credibility assessment, the judge noted that (1)
Particularly in view of Festus‘s affidavit confessing that the marriage was a sham and Saelee‘s credible testimony as to the circumstances of that statement, Judge Vinikoor found the evidence on the whole to be clear and convincing that Omowole had entered into the marriage for the purpose of
Having been found removable, Omowole then petitioned for asylum, withholding of removal, and relief under the Convention Against Torture. Like Festus, Omowole had remarried in 2011 following their divorce: she had wedded Victor Aknxootu, a prosperous Nigerian farmer from her agrarian hometown. Omowole testified that her family had forced her into the marriage, and that Aknxootu had given her family livestock, food, clothing, and money (to pay her now-deceased mother‘s medical bills) as a “bride price.”6 They had a traditional wedding in December 2011 attended by some 200 to 300 people (including Omowole‘s sister, who still lived in Nigeria). Aknxootu had two other wives and four children.
In seeking relief from removal, Omowolе alleged that if she were removed to Nigeria, she would face violence at the hands of her second husband and his other wives, because as a Nigerian woman whose family was paid money by her husband to marry her, she is regarded as his property. In her estimation, the abuse would resume upon her return to Nigeria and might one day result in her death. Omowole testified that divorcing Aknxootu was not an option because of her family‘s culture. Even if it were, she would have to repay Aknxootu and do so all at once—she and her brothers had explored the possibility of repaying him on an installment plan, but Aknxootu had vetoed that idea. Reporting the violence she had experienced to the police was also not an option (she had tried), because Aknxootu was rich and the police regarded spousal abuse as a private family matter. Finally, there was nowhere else in Nigeria for her to live: her parents were dead, and her sister (the only sibling still living in Nigeria) had her own family and only limited resources.
Omowole appealed the adverse findings of both immigration judges to the Board of Immigration Appeals (the “Board” or “BIA“), which dismissed her appeal in a decision issued in June 2020. The Board agreed that the DHS had met its burden to prove by clear and convincing evidence that Omowole had procured her entry visa by fraud or misrepresentation (her sham marriage to Festus), rendering her inadmissible at the time of her entry into the United States and thus removable. See
In her petition for review, Omowole challenges both the determination that she is removable from the United States for having procured her entry visa by fraud and the decision denying her asylum or withholding of removal.7 Both determinations rest in the first instance on the immigration judges’ adverse credibility findings. The Board, of course, sustained those findings in its decision. So it is that Omowole‘s appeal focuses primarily on the propriety of the immigration judges’ credibility determinations. As the Board adopted and elaborated on thе judges’ findings, we review the decisions of the immigration judges as supplemented by the Board. E.g., Guzman-Garcia v. Garland, 996 F.3d 480, 483 (7th Cir. 2021) (quoting Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013)). We will sustain an immigration judge‘s credibility determination so long as it is supported by substantial evidence. E.g., Cojocari v. Sessions, 863 F.3d 616, 621 (7th Cir. 2017) (quoting Krishnapillai v. Holder, 563 F.3d 606, 609, 615 (7th Cir. 2009)). The judge must give specific and cogent reasons for her decision to credit one witness over another. Id. In finding a witness incredible, she must also take care to distinguish between material lies on the one hand and innocent mistakes and plausible gaps in memory on the other. Id. (citing Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007)).
A. Removability based on sham marriage
As noted, the government‘s theory of removability is that Omowole obtained her derivative diversity visa by fraud by entering into a sham marriage with Festus. In assessing the
It goes without saying that this court‘s review of the immigration judge‘s credibility determinations is highly deferential. E.g., Alvarenga-Flores v. Sessions, 901 F.3d 922, 925 (7th Cir. 2018) (citing Song Wang v. Keisler, 505 F.3d 615, 620–21 (7th Cir. 2007)). Only in extraordinary circumstances will we disturb the judge‘s assessment. Krishnapillai, 563 F.3d at 617; Song Wang, 505 F.3d at 620–21.
We see no basis to disturb Judge Vinikoor‘s credibility аssessments here. In terms of crediting the fraud detection officer and Festus‘s affidavit admitting fraud, Judge Vinikoor considered and rejected the notion that officer Saelee had
Of course, Festus recanted his affidavit at the removal hearing, but recantаtions generally are viewed with healthy skepticism, Arnold v. Dittman, 901 F.3d 830, 839 (7th Cir. 2018); United States v. Ogle, 425 F.3d 471, 478 (7th Cir. 2005), and the judge appropriately cited various inconsistencies between the testimonies of Festus and Omowole and the other record evidence as grounds for discrediting their account at the hearing. See Alvarenga-Flores, 901 F.3d at 925–26 (noting that in cases governed by the REAL ID Act, the judge may base her credibility finding on any inconsistency, whether it goes to the heart of the immigrant‘s claim or not); Krishnapillai, 563 F.3d at 616–17 (same);
B. Application for asylum and other relief
Judge Lang rejected Omowole‘s request for relief from removal, which was premised on Omowole‘s allegation that, as a Nigerian woman whose family was paid a “bride price” by her second husband, she is regarded as her husband‘s property and will face continued persеcution and abuse from her husband and his family should she be removed to Nigeria, as she lacks the resources to repay her husband for the gifts he made to her family. Omowole‘s case for relief was premised exclusively on her own testimony, and, again, Judge Lang determined that Omowole was not sufficiently credible as a witness to support her application. The judge noted that Omowole‘s testimony was vague and lacking in certain details; she had also given inconsistent testimony as to when she married her second husband (2011 versus 2013). There was also another important discrepancy, in that Omowole had not mentioned in her asylum application that her second husband was abusive. That omission is significant, given the central role that the alleged abuse plays in her request for asylum and
In short, Judge Lang reasonably determined that Omowole was not sufficiently credible and had no corroboration to establish the factual underpinning of her claims for asylum and other relief. It is unnecessary for us to reach Judge Lang‘s alternative reasons for denying Omowole‘s requests for asylum or withholding of removal, as the adverse credibility determination and the lack of corroboration doom her claims. Neither Judge Lang nor the Board committed any discernable еrror.
III.
The adverse credibility findings of the immigration judges, as sustained by the Board, are central to the determinations that Omowole is removable and that she is not entitled to asylum or withholding of removal, and those findings are supported by substantial evidence. We therefore DENY Omolowe‘s petition for review.