          United States Court of Appeals
                     For the First Circuit


No. 17-1280

                    ELIZABETH WAIRIMU GITAU,

                           Petitioner,

                               v.

                    JEFFERSON B. SESSIONS III,
                 United States Attorney General,

                           Respondent.


               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     Saher J. Macarius and Law Offices of Saher J. Macarius, LLC
on brief for petitioner.
     Sunah Lee, Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and
Cindy S. Ferrier, Assistant Director, Office of Immigration
Litigation, on brief for respondent.


                        December 22, 2017
            KAYATTA,      Circuit   Judge.        Elizabeth      Wairimu   Gitau

petitions for review of a decision from the Board of Immigration

Appeals ("BIA") dismissing her appeal of an Immigration Judge's

("IJ") decision ordering her removal to Kenya.                Having reviewed

the BIA's decision, including the decision of the IJ as adopted by

the BIA, see Guerrero v. Holder, 667 F.3d 74, 76 (1st Cir. 2012),

as well as the record and the parties' briefs, we deny Gitau's

petition.

                                      I.

            Gitau is a native and citizen of Kenya.                Following a

marriage to a United States citizen, Undray Johnson, Gitau became

a lawful permanent resident on a conditional basis. Under 8 U.S.C.

§§ 1186a(c)(1)(A)      and   (B),   she    and   Johnson   could    remove   the

conditional nature of her status by jointly filing Form I-751, the

Application to Remove the Conditions of Residence.               They divorced,

however,    and   Gitau    was   unable    to    satisfy   the    joint    filing

requirement.      She filed a petition to waive the joint filing

requirement, pursuant to 8 U.S.C. § 1186a(c)(4) and 8 C.F.R.

§ 1216.5, which permit an alien who cannot satisfy the joint filing

requirement to nonetheless avoid removal if certain conditions are

met.   That petition was denied.           She was subsequently placed in

removal proceedings, whereupon she renewed her request for a

waiver.    In her waiver requests, she relied upon three subsections

of the regulation addressing such waivers, two of which required


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a showing that she entered into the marriage in good faith, 8

C.F.R. §§ 1216.5(a)(1)(ii)–(iii), and the third of which required

a showing that her removal would result in extreme hardship, 8

C.F.R. § 1216.5(a)(1)(i).

                  After a testimonial hearing, the IJ ruled against Gitau,

finding her not to be a credible witness and finding the evidence

other than her own testimony to be insufficient to support her

claim that she entered into her marriage in good faith.                    The IJ

also found that Gitau had not demonstrated extreme hardship.

Rejecting Gitau's appeal, the BIA adopted and affirmed the IJ's

decision, determining that the IJ did not clearly err in finding

Gitau's      testimony      not   credible,     and   that   the   IJ   adequately

considered her documentary evidence.                  Gitau now asks us to set

aside       the     BIA's   decision   for    lack    of   substantial    evidence

supporting its findings.1




        1
       The Statement of Issues in Gitau's brief also lists as an
issue before us:    "Whether the BIA's decision is arbitrary and
capricious and not in accordance with current immigration policy."
That formulation of the issue would seem to be less favorable to
Gitau than the substantial evidence test argued elsewhere in her
brief. Be that as it may, she does not press this formulation in
the substantive portions of her brief, thus waiving it. See Puerto
Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st Cir.
2017). She also alludes to due process concerns in her Summary of
Argument, but similarly fails to develop any argument on this
point, thus waiving it as well. Id.


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                               II.

                                A.

          To establish that she entered into her marriage in good

faith, Gitau must demonstrate that she "intended to establish a

life with [her] spouse at the time of marriage."   Valdez v. Lynch,

813 F.3d 407, 410 (1st Cir. 2016) (internal quotation marks

omitted) (quoting Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir.

2005)).   In making this determination, the Secretary of Homeland

Security is to "consider any credible evidence relevant to the

application."   8 U.S.C. § 1186a(c)(4).    Congress assigned to the

immigration authorities, not to this Court, the responsibility for

determining the credibility of an applicant's testimony.     See id.

("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."). As a result of this statutorily

compelled deference, we review credibility determinations under

the substantial evidence standard, which "requires us to uphold

the agency's findings so long as the record does not 'compel a

reasonable factfinder to reach a contrary determination.'"   Rivas-

Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009) (quoting Chhay v.

Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)).   This deference is great,

but "not unlimited."   Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.

2012).




                              - 4 -
            In reviewing a credibility determination, we recognize

that the law governing removal proceedings expressly authorizes

the IJ to consider "demeanor, candor, or responsiveness of the

applicant or witness, the inherent plausibility of the . . .

account,    the   consistency    [of    the     evidence]    . . .    and    any

inaccuracies or falsehoods in such statements, without regard to

whether an inconsistency, inaccuracy, or falsehood goes to the

heart of the applicant's claim."        8 U.S.C. § 1229a(c)(4)(C).           So,

too, the IJ must consider any corroborating evidence offered, id.

§ 1229a(c)(4)(B), and assess the evidence as a whole.                Jabri, 675

F.3d at 24.

            It is undisputed that a wedding took place in October

2004.      The issue, though, is whether Gitau entered into the

marriage in good faith.         Examination of Gitau at the hearing

trained on determining how Gitau remembered her courtship and

wedding, how well she knew Johnson and his friends, and what living

arrangements ensued. The IJ found that Gitau's testimony contained

numerous     statements    inconsistent        with   ones   she     had     made

previously, and as such, she had "failed to testify credibly

regarding her marriage."        In so finding, the IJ pointed to four

ways in which Gitau's testimony conflicted with other evidence,

most significantly her own prior statements made to the United

States Customs and Immigration Service ("USCIS") and statements

contained     within      various      sworn      declarations.             These


                                    - 5 -
inconsistencies involved:      the length of Gitau and Johnson's

courtship, the identity of the attendees at their wedding, the

identity of the persons residing with them, and the timeframe of

her separation from Johnson. The IJ considered the inconsistencies

along   with   Gitau's   explanations   for   them,   and   ultimately

determined that the inconsistencies rendered her testimony not

credible. The IJ also found that her other evidence insufficiently

corroborated, and actually contradicted, her testimony.

          We have reviewed the transcript of Gitau's testimony and

the portions of the record said to be inconsistent with that

testimony. As to the length of her courtship, though her testimony

was arguably inconsistent, this inconsistency may be explained by

differing understandings of engagement and dating, or simply by

non-malicious inaccuracy, fading memory, or imprecise questioning.

Though the IJ mentioned this inconsistency, he did not discuss it

in depth, and appeared to place little weight on it.        He placed

more weight on Gitau's troubles with accurately identifying the

guests at her wedding.    In her testimony, Gitau identified these

guests as her sister, Donald Dennard (her sister's boyfriend), and

Peter Hicks.    Gitau's 2010 statement to USCIS, however, claimed

that the wedding attendees were her sister and a "Peter Smith."

She also told USCIS in 2010 that she did not recognize the names

Peter Hicks and Donald Dennard.     Since there is other evidence

that someone by the name of Peter Hicks was Johnson's friend, it


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is possible that Gitau's memory simply faded as time passed since

the 2004 wedding.       On the whole, though, this was not the type of

testimony that got Gitau off on a good foot.

              As for who lived with her and when, Gitau's statements

were also inconsistent, but only if one excluded the possibility

that her mother's brief stays with her were not "living with her."

Less   easy    to   explain   --   for   Gitau   --   are   her   inconsistent

statements about a very important point:              when she and Johnson

separated.     She told the IJ, repeatedly, that Johnson moved out in

January 2007.       Previously, though, she had stated in a declaration

to USCIS that Johnson had left in June 2008, and had testified

before USCIS that he had left in November 2008.             On appeal, Gitau

suggests that Johnson had various types and degrees of departure

between 2007 and late 2008.              The IJ -- who actually observed

Gitau's testimony -- was not inclined to view it so charitably.

He also considered and rejected Gitau's claim that her failure to

testify consistently could be attributed to anxiety.

              Though the remainder of Gitau's testimonial evidence

largely supported her claim, none of it did so decisively, as it

consisted primarily of testimony from her sister and uncle, as

well as witness statements in affidavits.             Moreover, the IJ also

found inconsistencies in the testimony of Gitau's sister, thus

reducing even further the persuasive value of this testimony.             And

the documentary evidence Gitau provided, consisting of bills,


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financial records, and the like, was similarly inconclusive.     It

does appear that Gitau and Johnson filed a joint federal tax return

for 2006 reflecting the address at which Gitau says they then

resided together, but Johnson's W-2 forms for that same year show

a different address.   Gitau also offered copies of statements and

bills addressed to the couple, all but one of which post-date the

January 2007 claimed date of separation.    And certainly it did not

help Gitau's cause that the evidence also showed that in 2007

Johnson purported to marry two other individuals seeking residence

status in the United States.

          On this record, a reasonable factfinder could have gone

either way on the question of whether Gitau was credible, and

consequently, on the question of whether she carried her burden of

proving that she married Johnson in good faith.      There being no

plausible claim of legal error, we therefore lack any ability to

substitute our assessment of the evidence for that of the IJ.

Accordingly, we conclude that there was no error in denying Gitau

a waiver based on a good faith marriage pursuant to 8 U.S.C.

§§ 1186a(c)(4)(B) or (C).

                                B.

          As an alternative ground for a waiver, Gitau argued to

the IJ and BIA, and contends here, that she would suffer extreme

hardship were she to be removed, and thus should have been granted

a waiver under 8 U.S.C. § 1186a(c)(4)(A).   The government counters


                               - 8 -
that as a threshold matter, we lack jurisdiction to review the

BIA's determination as to extreme hardship, and that in any event,

the BIA was correct to deny the waiver.

            We are not persuaded by the government's jurisdictional

argument.    It is true that under 8 U.S.C. § 1252(a)(2)(B)(ii),

Congress removed our jurisdiction over any "decision or action of

the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this subchapter to be in

the discretion of the Attorney General or the Secretary of Homeland

Security." However, we have made clear that there is a distinction

between questions of law concerning eligibility for relief and the

ultimate    decision   of   the   Secretary   to   grant   such   relief   if

eligibility is found.       See Cho, 404 F.3d at 101–02.     Stressing the

courts' "customary power to be the final word on the meaning of

legal concepts," we have held that we have jurisdiction to review

the BIA's application of the law in determining whether the

eligibility factors are satisfied, but lack jurisdiction to review

the Secretary's final decision to grant or withhold discretionary

relief.    Id. at 102 ("We hold today . . . that eligibility rulings

under section 1186a remain reviewable by the courts . . . .").

            The government tries to distinguish Cho -- which dealt

with a determination of good faith marriage, as opposed to a

determination of extreme hardship -- on the basis that the good

faith determination is governed by objective regulatory criteria,


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while the extreme hardship determination is not.      However, this is

not entirely accurate.   The regulation governing extreme hardship

contains two dictates:    the Secretary "shall" consider only the

circumstances that arose during the time period of the applicant's

conditional residence in the United States,2 and the Secretary

"shall" likewise "bear in mind" that all removals result in some

hardship, and the waiver should only be granted for the subset

where the hardship is extreme.     8 C.F.R. § 1216.5(e)(1).   This is

not dramatically different it its degree of objectivity from the

regulatory guidance given for the determination of a good faith

marriage; indeed, the only mandatory consideration under that

subsection of the regulation is that the Secretary "shall consider

evidence relating to the amount of commitment by both parties to

the   marital   relationship."     8   C.F.R.   § 1216.5(e)(2).   The


      2The language of the statute and the language of the
regulation differ slightly as to the relevant time period; the
former states that the relevant timeframe is only the period of
conditional resident status, while the latter would seem to allow
for an open-ended timeframe.      Compare 8 U.S.C. § 1186a(c)(4)
("[T]he Secretary . . . shall consider circumstances occurring
only during the period that the alien was admitted for permanent
residence on a conditional basis.") with 8 C.F.R. § 1216.5(e)(1)
("[T]he director shall take into account only those factors that
arose subsequent to the alien's entry as a conditional permanent
resident.").   However, the BIA has made clear that the only
relevant time period is the period of conditional resident status,
and as a result, any event that serves as a basis for a hardship
finding must occur during this period, not simply subsequent to
the grant of conditional resident status. See Matter of Munroe,
26 I & N Dec. 428, 435 (BIA 2014). Gitau does not contend that
Matter of Munroe was decided in error, and we assume without
deciding that it correctly states the applicable law.


                                 - 10 -
subsection goes on to list certain evidence that may satisfy this

requirement, but it does not provide that this evidence constitutes

the exclusive set of evidence the director shall consider.                    See

id. § 1216.5(e)(2).        Viewed in terms of what is actually mandatory

for   the    Secretary,     the     differences      between   the   regulatory

treatment of the good faith determination and the extreme hardship

determination       are   matters    of   degree,    not   kind.     Thus,   this

distinction is not an adequate basis to depart from the holding of

Cho that threshold determinations of eligibility for a waiver are

reviewable, while the ultimate grant or denial of a waiver is not.

             Turning to the merits of Gitau's hardship claim, we have

no trouble concluding that the BIA's finding on the question of

extreme hardship was supported by substantial evidence.3                       As

contemplated by the regulation, removal necessarily involves some

hardship, so an applicant must demonstrate hardship that goes

beyond      those    normally       attendant   to     removal.        See    Id.

§ 1216.5(e)(1). And the extreme hardship must be due to conditions

arising during the applicant's time as a conditional permanent

resident.     Id.; see also 8 U.S.C. § 1186a(c)(4); note 3, supra.


      3The government contends that the standard of review on this
question is abuse of discretion. In support, it cites Gebremichael
v. INS, 10 F.3d 28 (1st Cir. 1993). However, that case actually
cuts against the government's contention. We noted in Gebremichael
that while a motion to reopen or reconsider would be reviewed for
abuse of discretion, determinations about statutory eligibility
for relief are reviewed for substantial evidence. See id. at 34
n.17.


                                      - 11 -
Here, the BIA and IJ considered the evidence of hardship Gitau put

forward, both individually and in the aggregate, and determined

that much of the evidence concerning conditions in Kenya did not

relate to the relevant period, but instead described general

conditions in the country before and after the period.           The same

was true of evidence concerning changes in Gitau's life, for

example, her student loan debt.       The IJ and BIA determined that

this debt, and the other changes she alleged, also occurred outside

of the relevant time period.    The only evidence of hardship the IJ

considered to be not barred due to timing concerns was Gitau's

testimony that it would be impossible for her to find work in her

field in her parents' village in Kenya.4         The IJ (and the BIA, in

adopting the IJ's decision) considered this point, but concluded

that there was no evidence that Gitau would not be able to find

employment somewhere in Kenya, and thus, this hardship would not

be extreme.    On this record, we cannot say that a reasonable

factfinder would have been "compelled" to reach the opposite

conclusion,   and   thus   Gitau's   challenge    fails   on   substantial

evidence review.    See Rivas-Mira, 556 F.3d at 4.




     4 Even this is arguable, as Gitau based the contention that
she was unemployable on the fact that she had an advanced
education. As the IJ noted, she acquired her advanced degree in
2004, outside the relevant time period. That said, the IJ appeared
to consider this particular form of hardship on the merits and not
simply disregard it as outside of the proper timeframe.


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                              III.

          Gitau has failed to meet her burden of demonstrating

that the BIA's decision was not supported by substantial evidence.

The petition for review is denied.




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