Alom v. Whitaker

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17-2627 (L)
Alom v. Whitaker
UNITED STATES COURT OF APPEALS
FOR THE S ECOND CIRCUIT
___________________
August Term, 2018
(Argued: August 21, 2018 Decided: December 17, 2018)
Docket Nos. 17-2627 (L), 18-1384 (Con)
___________________
MD T ITUMIR A LOM ,
Petitioner,
v.
M ATTHEW G. W HITAKER , A CTING U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
___________________
Before: H ALL , L OHIER , Circuit Judges, and RESTANI, Judge.1
Petitioner MD Titumir Alom, a native and citizen of Bangladesh, seeks review of
two decisions of the Board of Immigration Appeals. The first affirmed his order of removal
and an immigration judge’s denial of a waiver of the the joint filing requirement to remove
the conditions on his permanent resident status on the grounds that his marriage had not
been entered in good faith. The second denied Alom’s motion to reopen and reconsider.
Alom argues that (1) the Board erred by reviewing the waiver denial for clear error rather
than de novo; and (2) the Board ignored evidence presented with his motion to reopen to
demonstrate that he and his ex-wife entered into their marriage in good faith. We remand
to the agency on the first point because the Board applied only clear error review. Although
the underlying factual findings are subject to such review, whether the evidence satisfies a
petitioner’s burden to prove entitlement to a good faith marriage waiver is a mixed question
of law and fact subject to de novo review. Alom’s second argument is abandoned because
1 Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.

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he does not assert a meaningful challenge to the agency’s denial of reopening and
reconsideration.
Petition granted in part and denied in part.
___________________
K HAGENDRA G HARTI-C HHETRY, New York, NY, for Petitioner.
IMRAN R. ZAIDI, Attorney, Office of Immigration Litigation, Civil Division
(Chad A. Readler, Acting Assistant Attorney General, Civil Division; Julie
M. Iversen, Senior Litigation Counsel, on the brief), United States
Department of Justice, Washington DC, for Respondent.
___________________
PER CURIAM:
Petitioner, MD Titumir Alom, a native and citizen of Bangladesh, seeks review of
a July 28, 2017 decision of the Board of Immigration Appeals (“BIA”) affirming an
October 3, 2016 decision of an Immigration Judge (“IJ”) denying Alom’s application for a
good faith marriage waiver of the joint filing requirement to remove the conditions on his
permanent residency. Alom also seeks review of an April 9, 2018 decision of the BIA
denying his motion to reopen and reconsider. The issues before us are whether (1) the BIA
applied the wrong standard of review in considering the IJ’s good faith marriage
determination; and (2) whether the BIA abused its discretion when it declined to reopen or
reconsider. We answer the first question in the affirmative: the BIA invoked only clear
error review, but whether a petitioner satisfied his burden of proof for a good faith marriage
waiver is a mixed question of law and fact subject to de novo review. We decline to answer
the second question because Alom has abandoned any challenge to the BIA’s denial of his
motion to reopen and reconsider by failing to sufficiently argue it in his brief.

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BACKGROUND
Alom entered the United States as a conditional lawful permanent resident in May
2005 based on his marriage to Shahrine Naz, a U.S. citizen. Alom and Naz began their
courtship in the summer of 2002 while Naz was vacationing in Bangladesh; she married
Alom during another trip to Bangladesh in the summer of 2003 but returned to the United
States shortly thereafter to continue her college studies. They divorced in December 2005,
approximately six months after Alom came to the United States.
A non-citizen who marries a U.S. citizen has conditional lawful permanent resident
(“LPR”) status for two years after admission, after which the couple must file a joint request
to remove the conditions. See 8 U.S.C. § 1186a(a)(1), (d)(2)(A) (requiring petition to
remove conditions to be filed during 90-day period preceding two-year anniversary of
admission as LPR). As a result of his divorce from Naz, Alom was unable to file the
required joint request to remove the conditions. However, a non-citizen may request a
waiver of the joint filing requirement if the non-citizen spouse entered the marriage in good
faith and either the marriage was later terminated (other than through death) and the non-
citizen was not at fault or the non-citizen “was battered by or was the subject of extreme
cruelty perpetrated by his or her spouse.” Id. § 1186a(c)(1)(A), (4)(B)–(C); 8 C.F.R.
§ 216.5.
Alom requested a waiver of the joint filing requirement, initially alleging that he
was battered or subject to extreme cruelty by Naz. The U.S. Citizenship and Immigration
Services (“USCIS”) denied that petition for insufficient evidence. He then sought a waiver

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on the ground that the marriage was entered into in good faith. USCIS again denied a
waiver and then terminated Alom’s conditional LPR status, finding that Alom failed to
prove that his marriage to Naz was bona fide, i.e., that it was not entered into to evade
immigration laws. In October 2009, the Department of Homeland Security placed Alom
in removal proceedings because his conditional LPR status was terminated.
Before the IJ, Alom renewed his requests for a waiver of the joint filing requirement
and offered testimony in support. The IJ denied relief, concluding that Alom failed to meet
his burden of proving a good faith marriage because he had no evidence of how long he
and Naz cohabitated after their marriage, no evidence of joint finances, and no photographs
of the wedding ceremony, and there were no children from the marriage. Naz’s divorce
filing alleged that Alom disappeared shortly after his arrival in the United States and his
brother eventually told Naz that Alom was in hiding. The IJ concluded that Alom’s failure
to contest those claims in the divorce proceeding and his admission that he was still in
contact with Naz damaged his credibility given that he did not call her as a witness, obtain
an affidavit from her, or provide her contact information to the Government’s counsel.
Further, the IJ found that Alom’s testimony that he fled to New York from Georgia, where
he had been living with Naz and her family, when Naz failed to pick him up from work
was contrary to his professed dedication to his marriage. Altogether, the IJ found Alom’s
account incredible and his evidence insufficient to establish a bona-fide marriage.
Alom appealed to the BIA, arguing that the IJ erred by (1) crediting Naz’s
statements in the divorce proceeding that Alom disappeared over an affidavit from his
brother that Naz’s family did not want him; (2) concluding that Alom was not credible

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solely because he did not get an affidavit from Naz, given that he explained that he did not
want to cause problems in Naz’s current marriage; (3) refusing to credit a witness who
testified to attending Alom and Naz’s wedding and a witness who testified that the couple
was happy when they were together in Bangladesh, or email correspondence between the
couple before their marriage; (4) ignoring Alom’s testimony that he tried to save his
marriage; (5) failing to give Alom an opportunity to explain his and Naz’s finances; and
(6) relying on their not having any of children.
The BIA explained that Alom had to show that he entered into the marriage in good
faith, noted that the parties’ post-marriage conduct is relevant to intent, and commented
that relevant considerations included combined finances, length of cohabitation, children,
and testimony or statements from people who knew the couple before and after the
marriage. The BIA also stated that “[w]hether a marriage was entered into in good faith is
a factual question” subject to clear error review and concluded that the facts here—the
short duration of Alom’s cohabitation with Naz, the quick onset of their divorce after Alom
came to the United States, and the lack of children or evidence of combined finances or
assets—supported the IJ’s decision. Certified Administrative Record (“CAR”) 177. As to
Alom’s challenges to the weight the IJ gave the competing evidence (the record of the
divorce proceedings and Alom’s version of events), the BIA ultimately concluded that on
clear error review there was no basis to reverse the IJ’s interpretation of the evidence
“simply because the facts could have been viewed differently.” Id. 177–78.
Alom timely moved for reopening and reconsideration of the BIA’s decision. The
evidence he submitted in support of reopening purported to show a good faith marriage—

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namely, Alom’s own updated affidavit; Naz’s passport demonstrating that she traveled to
Bangladesh twice after their marriage; wedding photographs; an airline ticket showing
Alom’s attempt to visit Naz in Atlanta; social media messages (from after their divorce);
and email correspondence (while Alom lived in Bangladesh). Alom also argued that the
BIA and IJ had ignored evidence, including evidence that removal would cause him
hardship.
As to reopening, the BIA concluded that Alom’s additional evidence was not new
or previously unavailable. In denying reconsideration, the BIA ruled that Alom’s
arguments that the IJ ignored evidence were not grounds for reconsideration because they
either were or could have been raised initially on appeal. Moreover, Alom’s claim of
potential hardship was not relevant to the good faith marriage inquiry and therefore did not
support reconsideration.
DISCUSSION
A conditional permanent resident and his citizen spouse must jointly petition to
remove the conditions on the non-citizen spouse’s residency during the 90-day period
preceding the two-year anniversary of permanent residency. 8 U.S.C. § 1186a(c)(1)(A),
(d)(2). The joint petition requirement may be waived if, as argued here, “the qualifying
marriage was entered into in good faith by the [non-citizen] spouse, but the qualifying
marriage has been terminated (other than through the death of the spouse).” Id.
§ 1186a(c)(4)(B); see also Boluk v. Holder, 642 F.3d 297, 299 (2d Cir. 2011). “The
determination of what evidence is credible and the weight to be given that evidence shall
be within the sole discretion of the Secretary of Homeland Security.” 8 U.S.C.

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§ 1186a(c)(4)(D). It is the non-citizen’s burden to demonstrate that “the qualifying
marriage was entered into in good faith by the alien spouse.” Boluk, 642 F.3d at 302
(quoting 8 U.S.C. § 1186a(c)(4)(B)). “The central question is whether the bride and groom
intended to establish a life together at the time they were married.” In re Laureano, 19 I.
& N. Dec. 1, 2–3 (B.I.A. 1983).
We have reviewed the decisions of both the IJ and the BIA. Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008) (per curiam). Although our jurisdiction to review denials
of discretionary relief, including the waiver at issue here, is limited to “constitutional
claims or questions of law,” 8 U.S.C. § 1252(a)(2)(B)(ii), (D); Contreras-Salinas v.
Holder, 585 F.3d 710, 713 (2d Cir. 2009) (per curiam), we retain jurisdiction to review the
question of law that Alom raises: whether the BIA applied the wrong standard of review,
see Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (holding that whether an “agency
applied an erroneous legal standard in making a discretionary determination” is a
reviewable question of law).
The BIA reviews an IJ’s factual findings for clear error but “may review questions
of law, discretion, and judgment and all other issues in appeals from decisions of
immigration judges de novo.” 8 C.F.R. § 1003.1(d)(3)(i)–(ii). The question here is
whether the good faith marriage determination is a factual question (that the BIA properly
reviewed for clear error) or a question of law or a mixed question of law and fact (that the
BIA should have reviewed de novo).
In determining our own jurisdiction, we have noted that this issue—whether this
eligibility determination is a question of law or fact—is unresolved. See Contreras-

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Salinas, 585 F.3d at 713. At least one other circuit has concluded that “whether the credited
evidence meets the good faith marriage standard is a legal question subject to de novo
review.” Upatcha v. Sessions, 849 F.3d 181, 187 (4th Cir. 2017). BIA precedent also
supports this view. We now resolve the issue and agree with the Fourth Circuit that de
novo review applies to the mixed question of law and fact of whether Alom established
that his marriage was entered into in good faith under § 1186a(c)(4)(B). Accordingly, we
grant Alom’s petition and remand for the BIA to apply the correct standard.
When determining whether established facts are sufficient to meet a legal standard,
the BIA has an obligation to conduct an independent evaluation of the evidence in the
record under a de novo standard of review. See 8 C.F.R. § 1003.1(d)(3)(ii); In re A-S-B-,
24 I. & N. Dec. 493, 497 (B.I.A. 2008), overruled in part on other grounds by In re Z-Z-
O-, 26 I. & N. Dec. 586, 589–91 (B.I.A. 2015). “Where the Board reviews . . . a mixed
question of law and fact . . . the Board will defer to the factual findings of the immigration
judge unless clearly erroneous, but the Board members will retain their ‘independent
judgment and discretion,’ subject to the applicable governing standards, regarding the
review of pure questions of law and the application of the standard of law to those facts.”
BIA: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,888–89
(Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3). “In determining whether established
facts are sufficient to meet a legal standard, . . . the Board is entitled to weigh the evidence
in a manner different from that accorded by the Immigration Judge, or to conclude that the
foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise not

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supported by the evidence of record.” In re A-S-B-, 24 I. & N. Dec. at 497 (addressing
BIA’s review of IJ’s well-founded fear determination for asylum).
Although not always fully consistent, the BIA’s unpublished decisions generally
support the conclusion that the ultimate determination of whether a marriage was entered
into in good faith is a mixed question of law and fact subject to de novo review. See In re
Moody, 2012 BIA LEXIS 40, at *1–2 (B.I.A. Jan. 20, 2012) (“Upon our de novo review,
we agree with the Immigration Judge that the respondent has not established that she is
eligible for a [good faith marriage] waiver” (emphasis added)), aff’d, Moody v. Holder,
523 F. App’x 88 (2d Cir. 2013) (summary order); In re Chhay, 2010 WL 1747403, at *2
(B.I.A. Apr. 15, 2010) (“As the question for consideration is whether the respondent has
established, as a matter of law, that his marriage was entered into in good faith, so as to
qualify for a waiver . . ., the Immigration Judge’s decision denying a . . . waiver is reviewed
by this Board on a de novo basis.”); see also Chowdhoury v. Holder, 494 F. App’x 182,
184 (2d Cir. 2012) (summary order) (upholding BIA’s de novo review of IJ’s finding that
petitioner had not entered into his marriage in good faith). But see In re Patel, 2008 WL
5025243, at *2 (B.I.A. Nov. 15, 2008) (“The intent of the parties at the time of the marriage
is a factual question, and therefore this aspect of the Immigration Judge’s decision denying
a [good faith marriage] waiver . . . is reviewed by this Board for clear error.”).
The Government concedes that we have not expressly considered the appropriate
standard of review to apply to an immigration judge’s good faith marriage determination.
Nevertheless, it argues that such determinations present only factual questions and are
reviewed for clear error by the BIA. For the following reasons, we disagree with the

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Government’s position. We have applied a de novo standard of review to mixed questions
of law and fact concerning whether a non-citizen meets the required standard for relief in
analogous contexts. For example, while we review an IJ’s factual findings for substantial
evidence, questions of law, such as “what evidence will suffice to carry an asylum
applicant’s burden of proof,” are reviewed de novo. Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005) (internal quotation marks omitted). Similarly, where an asylum
applicant is deemed credible, the IJ’s ultimate conclusion that the facts do not meet the
legal definition of persecution is a “mixed question of law and fact, which we review de
novo.” Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam); see also
Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (explaining that for asylum based on
membership in a particular social group, de novo review applies to “whether the social
group [petitioner] has described satisfies the statutory standard”).
In the present case, the BIA expressly stated that “[w]hether a marriage was entered
into in good faith is a factual question” subject to clear error review. CAR 177. And at
the end of its decision, it emphasized that it could not “reverse an Immigration Judge’s
decision simply because the facts could have been viewed differently,” concluding that it
would not disturb an IJ’s ruling if it “was based on a permissible view of the evidence.”
CAR 178. But these statements conflict with the BIA’s published authority holding that
where the question is whether established facts meet a legal standard, the BIA may weigh
the evidence differently than the IJ. See In re A-S-B-, 24 I. & N. Dec. at 497. Here, the
established facts—subject to clear error review by the BIA—were that the couple married
in Bangladesh in mid-2003, barely resided together during their marriage, divorced six

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months after Alom’s entry to the United States in 2005, and had no children or
demonstrable marital property. But the BIA failed to acknowledge the de novo standard
applicable to the mixed question of whether the established facts were sufficient to
establish a good faith marriage under § 1186a(c)(4)(B). In fact, the BIA’s commentary
implies that it applied only clear error review to the entirety of the good faith marriage
determination (i.e., whether the established facts demonstrated that Alom entered his
marriage in good faith) and did not contemplate its authority to reweigh the evidence or to
conclude that the IJ’s legal conclusions were insufficient. See id. In sum, although the
BIA properly reviewed the IJ’s credibility and other factual findings for clear error, it erred
by not treating the ultimate determination of whether Alom met his burden as a mixed
question of law and fact subject to de novo review. See, e.g., In re Moody, 2012 BIA
LEXIS 40, at *1–2. Accordingly, we grant the petition and remand for the BIA to apply
the appropriate standards of review. See Upatcha, 849 F.3d at 185–87.
We deny the petition in remaining part to the extent it challenges the BIA’s denial
of reopening and reconsideration. Alom dedicates only two conclusory sentences to this
decision and cites no legal authority or record evidence. Because Alom fails to assert a
meaningful challenge to the BIA’s denial of his motion to reopen and reconsider, he has
abandoned review of that decision. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7
(2d Cir. 2005) (declining to consider an issue that is mentioned in a “single conclusory
sentence”).

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CONCLUSION
For the foregoing reasons, the lead petition for review is GRANTED and the case
is REMANDED to the BIA with instructions to apply the appropriate de novo standard of
review to the IJ’s denial of a good faith marriage waiver. It is further ORDERED that the
consolidated petition is DENIED because the Petitioner has abandoned any challenge to
the denial of reopening and reconsideration.

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