Bukola Omowole v. Merrick B. GarlandBukola Omowole v. Merrick B. Garland
Before MANION, KANNE, and ROVNER, Circuit Judges.
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
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 intо 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 executed an affidavit to that effect.1 Saelee subsequently prepared a statement of findings summarizing the interview, Festus‘s admission, and the affidavit. Based on those findings, the USCIS concluded that the marriage was a sham and that Omowole had procured her entry visa by fraud. Festus and Omowole were both placed in removal proceedings.2
Judge Vinikoоr conducted an evidentiary hearing on Omowole‘s removal at which Omowole, Festus, Omowole‘s brother, and officer Saelee 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 couple 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 know, until about a month after the wedding, that Festus had fathered a child with another woman. By the time they received their visas for entry into the United States, Omowole had surmised that Festus was still in a relationship with the mother of his child. The two quarreled and the marriage faltered. They travеled separately to the United States and lived apart on arrival: Omowole settled in Indianapolis with her brother and Festus shared an apartment with a friend in Sacramento, where members of his family lived. According to Omowole, she visited Festus for a month in California, but they did not get along. She returned to Indiana and did not see him again over the course of the next three years, although she said they spoke
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 reсeived 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 never lived together in the United States, explaining that they had had a falling out once Omowole learned about Festus‘s child. Omowole told him that she did visit Festus in California on one occasion.
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 emigrаtion 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
[W]hatever the truth I told them, they don‘t want to listen. They don‘t want to hear that. [Saelee] promised 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 believed he had already won the diversity lottery and submitted his application for a visa by the time he proposed marriage to Omowole, but he did not tell her about it at that time. Once they were married, they lived together in Nigeria as husband and wife for a period of eight months. Festus denied that Omowole‘s family had paid him any money or provided financial support to the couple.
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 shаm 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) there were several conflicts between their testimonies and Festus‘s prior statements as to whether Omowole had visited Festus in California (and, if so, for how long),4 whether Omowole or her family had given Festus any money, whether the pair had consummated their marriage, and whether they were married before or after Festus had won a diversity visa; (2) their accounts were vague as to their first meeting, their dating history and engagement, and exactly when Festus won the visa lottery; (3) although Omowole‘s brother had confirmed that she and Festus had lived together in Lagos after they married, Omowole herself had offered scant detail concerning her cohabitation with Festus in Nigeria nor had she submitted any documentary evidence of their cohabitation; (4) it was unclear, given the inconsistencies in their
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 wholе to be clear and convincing that Omowole had entered into the marriage for the purpose of obtaining immigration benefits. (The judge rejected Festus‘s assertion that he was coerced into making statements against his interest during the interview with Saelee.) Judge Vinikoor noted that the couple had never lived together in the United States; Festus admitted to Saelee that he had engaged in marriage fraud; there was little to no evidence confirming the dating relationship and marriage ceremony; Festus had maintained a relationship with another woman to whom he was now married; there was insufficient evidence that the couple had in fact lived together in Lagos; and there was insufficient evidence—such as joint tax returns, wedding pictures or other photographs of the couple, or bank statements—to rebut the government‘s “overwhelming evidence” that the marriage was a sham. A.R. 521. The judge therefore concluded that Department of Homeland Security (“DHS“) had adequately established Omowole‘s removability.
Having been found removable, Omowole then petitioned for asylum, withholding of removal, and relief under the Conventiоn 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.
After the wedding, she stayed with Aknxootu for twо months, sharing his three-bedroom home with his other wives and their children. She then left Nigeria for the United States, where she stayed for some eight months before returning to her husband in Nigeria in late 2012. She testified that Aknxootu and his other wives beat her on a daily basis and that Aknxootu demanded that she return the $15,000 to $16,000 he had spent on gifts to her family in exchange for a divorce. In 2013, having spent just two months in Nigeria, she left again for the United States, only to find herself placed in removal proceedings the following year based on the allegation that her marriage to Festus had been a sham.
In seeking rеlief from removal, Omowole 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
Following Judge Vinikoor‘s retirement, Judge Elizabeth Lang conducted a hearing on Omowole‘s сlaims for relief but ruled against her. Omowole was the sole witness in the second proceeding, and the judge found that she was not sufficiently credible for her testimony alone to establish her eligibility for relief from removal. The judge noted that parts of Omowole‘s story were vague and/or inconsistent with the documentary record. She had supplied only limited details concerning her marriage to Aknxootu and the abuse she had suffered. The date she gave for her second marriage was inconsistent with the testimony she had given during the removal hearing in 2013. Moreover, the statement she had given in support of her application for asylum had not mentioned any abuse. Because Omowole was not sufficiently credible and persuasive on her own, the judge invoked her authority under the REAL ID Act to require Omowole to present evidence corroborating the circumstances of her second marriage. See
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
II.
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 mаrriage with Festus. In assessing the legitimacy of the marriage for immigration purposes, the central question is whether the couple intended to establish a life together at the time they were married. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010); Matter of Soriano, 19 I. & N. Dec. 764, 765 (B.I.A. 1988). The IJ and the Board found that DHS had established that Omowole and Festus did not have this intent at the time of their marriage—i.e., that the marriage was not a bona fide union—by clear and convincing evidence. The issue for this court is whether that determination has the support of reasonable, substantial, and probative evidence on the record taken as a whole. E.g., Guzman-Garcia, 996 F.3d at 484. As we havе noted, Judge Vinikoor‘s findings against Omowole on this point turn largely on credibility assessments. In particular, the judge chose to credit and give substantial weight to Festus‘s affidavit confessing the sham nature of his marriage to Omowole and the USCIS fraud detection officer‘s testimony about Festus‘s confession, and to give only limited weight to Omowole‘s testimony along with
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 Vinikоor‘s credibility assessments 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 coerced Festus into admitting that his marriage to Omowole was a fraud. And although Omowole faults the Board for not addressing this point, we view the Board‘s decision to affirm the judge‘s credibility assessments as implicitly, and necessarily, sustaining Judge Vinikoor‘s finding that Festus‘s statements against interest as to the marriage were not coerced.
Of course, Festus recanted his affidavit at the removal hеaring, but recantations 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 fаce continued persecution and abuse from her husband and his family should she be removed to Nigeria, as she lacks
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 сlaims. Neither Judge Lang nor the Board committed any discernable error.
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