           United States Court of Appeals
                      For the First Circuit

No. 16-2027

                     KAMAL ALI, ISRAA HASSAN,

                      Plaintiffs, Appellants,

                                v.

 UNITED STATES OF AMERICA; JEFFERSON B. SESSIONS, III, Attorney
  General of the United States; JOHN F. KELLY, Secretary of the
   U.S. Department of Homeland Security; LORI SCIALABBA, Acting
  Director of U.S. Citizenship and Immigration Services; ANDREA
     ROGERS, Field Office Director of the U.S. Citizenship and
           Immigration Services Manchester Field Office,*

                      Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Andrea K. Johnstone, U.S. Magistrate Judge]


                              Before

                   Lynch, Thompson, and Barron,
                          Circuit Judges.




     *    Pursuant to Fed. R. App. P. 43(c)(2), the following
substitutions have been made among the appellees: Jefferson B.
Sessions, III, Attorney General of the United States, for former
Attorney General Loretta E. Lynch; John F. Kelly, Secretary of the
U.S. Department of Homeland Security, for former Secretary Jeh
Charles Johnson; Lori Scialabba, Acting Director of U.S.
Citizenship and Immigration Services, for former Director Leon
Rodriguez; and Andrea Rogers, Field Office Director of the U.S.
Citizenship and Immigration Services Manchester Field Office, for
former Director Anthony Violanti.
     Nathan P. Warecki, with whom Nixon Peabody LLP, Anna Barbara
Hantz, and Sheehan Phinney Bass & Green, PA were on brief, for
appellants.
     Terry L. Ollila, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellees.


                        February 28, 2017
            LYNCH, Circuit Judge.       Israa Hassan, a U.S. citizen,

filed an I-130 petition seeking permanent resident status for her

noncitizen husband, Kamal Ali.        See 8 U.S.C. §§ 1151(b)(2)(A)(i),

1154(a)(1)(A)(i); 8 C.F.R. § 204.2(a).       After interviewing Ali and

Hassan, U.S. Citizenship and Immigration Services ("USCIS") issued

a Notice of Intent to Deny ("NOID") the petition because of the

agency's determination that Ali's prior marriage to Priscilla

Lewis was "entered into for the purpose of evading the immigration

laws."     8 U.S.C. § 1154(c).   Ali and Hassan submitted additional

evidence in response to the NOID, including affidavits from Ali

and Lewis, aiming to prove that Ali's first marriage had not been

fraudulent.     Not persuaded to change its decision, USCIS denied

the petition.

            On appeal from an adverse judgment against them in their

lawsuit challenging that denial, Ali and Hassan argue that USCIS

did not afford them sufficient procedural due process, required by

the Constitution, in denying the I-130 petition. Even if we assume

arguendo    that   the   plaintiffs   are   entitled   to   some   form   of

constitutional due process from an interest in Ali having permanent

resident status through the petition, the district court properly

held that the plaintiffs have not shown how the additional process

they seek would have made any difference to the outcome.           See Ali

v. United States, No. 15-cv-201-AJ, 2016 WL 3190190, at *7, *8




                                  - 3 -
(D.N.H. June 7, 2016).              We affirm the district court's grant of

summary judgment in the government's favor.

                                          I.

                  Ali, a native of Sudan, entered the United States in

1988 on a student visa to attend Long Island University ("LIU").

He never enrolled and was living in Boston by 1989.                 In Boston he

met Priscilla Lewis, a U.S. citizen, and they married in 1993.

                  On November 2, 1995, Ali applied for adjustment of status

under       the    Diversity      Immigrant    Visa   program.     See   8    U.S.C.

§   1153(c).          When   the    Immigration   and   Naturalization       Service

("INS")1      requested      an    original    copy   of   the   photocopied     and

translated high school diploma he had submitted, Ali provided an

ostensible original that was inconsistent with the photocopy.                    The

INS concluded that the purported original diploma "c[ould] not be

the original of the photocopy."                When the INS again requested a

true original, Ali's counsel responded that both versions of the

document contained the same information and that "there [wa]s no

original to the photocopy that was originally submitted."                    The INS

concluded that Ali had failed to submit a valid original diploma.

See 8 C.F.R. § 103.2(b)(5).             On November 19, 1996, the INS denied

Ali's petition to adjust status, citing the false documentation.




        1 In 2003, USCIS and other components of the Department of
Homeland Security assumed the functions of the now-defunct INS.
See Ali, 2016 WL 3190190, at *1 n.2.


                                         - 4 -
          After Ali's first failed effort to adjust his status,

Lewis filed an I-130 petition in October 1997 on Ali's behalf.

The petition, signed by Lewis and Ali, stated that the couple had

lived together in Manchester, New Hampshire since August 1997.

Before the couple's scheduled interview with the INS in January

1998, however, Ali contacted INS officials and asked to reschedule,

stating that he and Lewis had separated and wanted time to work

toward a reconciliation.    The interview was postponed two more

times after that.     At a scheduled meeting in June 1998, Ali

appeared with a woman who claimed to be Lewis, but she had brought

no valid photo identification despite prior instructions to do so.

          An INS investigation into Ali's and Lewis' marriage

found additional information that cast doubt on the marriage's

bona fides.   For example, the investigators obtained Massachusetts

welfare records that showed that Lewis had been receiving welfare

checks at the same Boston address since 1985. Other records stated

that Ali had lived at several different addresses in Massachusetts

and New Hampshire between 1993 and 1998.    No records linked Lewis

to any address in New Hampshire.

          In September 1999, two INS agents interviewed Lewis in

Boston, finding her at the street address to which Massachusetts

had been sending her welfare checks.       During the interview, as

described by a report signed by one of the INS agents, Lewis stated

that Ali had offered her $1000 to marry him so that he could obtain


                               - 5 -
a green card -- that is, permanent resident status.                        She added

that after she and Ali separated, in 1998, Ali had asked her to

give the immigration authorities the false impression that the two

of them were still living together.

             After the interview, Lewis withdrew the I-130 petition

that she had filed on Ali's behalf.                      Her explanation of the

withdrawal, which was handwritten and signed by her, reiterated

that Ali had asked her to lie about their relationship and had

offered her $1000 to marry him.            The plaintiffs have not disputed

that Lewis signed the statement, and the INS agent verified that

Lewis had signed.          The statement is handwritten, in the first

person, and appears to be in the same handwriting as her signature

on the statement and on the I-130 petition.

             When   an    INS    agent   contacted       the   LIU    registrar,     he

recovered information that Ali had never attended the school.                       On

November 17, 1999, an INS agent spoke to Ali, and Ali admitted he

had never attended.

             Ali and Lewis divorced in May 2002.               Ali and Hassan, the

plaintiffs in this case, married in April 2003.                      Hassan filed an

I-130 petition on Ali's behalf in July 2007, the year after she

became   a   naturalized        U.S.   citizen.      A    USCIS      officer   in   the

Manchester Field Office interviewed Ali and Hassan in January 2008.

During that interview, Ali later alleged, he was told about Lewis'

1999 statement.          At the interview, while under oath, he denied


                                         - 6 -
paying Lewis to marry him.       In the final decision that USCIS

ultimately issued, USCIS said that Ali also confirmed in the

interview that he and Lewis had "primarily" lived apart "during

the duration of their marriage" and, USCIS said, he stated that

they "were not, in fact, living together in 1998 when the two were

asked to appear for an [INS] interview."

           On August 25, 2008, the Manchester Field Office Director

("the Director") sent Hassan a NOID. The NOID explained that USCIS

had reviewed the record and concluded that Ali's marriage to Lewis

had been fraudulent.      The NOID relied most heavily on Lewis'

statements, in her 1999 interview with INS agents, that she had

not been living with Ali "at the time of the June 1998 interview"

and that Ali had offered to pay her "$1000 to marry him so he

c[ould] get a green card." The NOID then stated that "the evidence

present in the file, mainly in the form of Ms. Lewis' sworn

testimony, weigh[ed] heavily in the decision of [Hassan's] visa

petition for Mr. Ali" and that "[t]he file lack[ed] essential

evidence that clearly indicate[d] Mr. Ali and Ms. Lewis lived

together   as   husband   and   wife."     The   NOID   stated   that

"[f]urthermore" Ali's statements at the January 2008 interview

supported its conclusions.      The NOID offered Hassan and Ali a

chance to respond and "to establish why [Hassan's I-130 petition]

should not be denied."




                                - 7 -
             On October 25, 2008, Hassan and Ali submitted additional

evidence to USCIS in response to the NOID.          The response included

an   affidavit    from   Lewis,   Ali's    former   wife,   in   which   she

contradicted her September 1999 interview and signed statement by

asserting that she had married "out of love and not for money,"

that Ali had "never offered [her] any money to marry him," and

that she had "never told anyone [from INS] that . . . Ali offered

[her] money for a green card."        But Lewis did not deny that she

had met with an INS agent in 1999.         Nor did she deny that she had

executed and then signed the 1999 interview statement or that the

agent had witnessed and confirmed her signature.                 Lewis' new

affidavit also stated that she had "destroyed a lot of the proof

of [their] life together, such as photos, because [she had been]

angry at [their] separation."

             In response to the NOID, Hassan and Ali, represented by

counsel, also submitted, in addition to Lewis' recantation, an

affidavit from Lewis' mother stating that Lewis had moved to New

Hampshire while married to Ali, as well as bills sent to Ali's New

Hampshire address with Lewis' name on them.

             In Ali's own affidavit, he asserted that Lewis had lived

with him in New Hampshire from July or August 1997 until at least

June 1998.     That claim was inconsistent with what the agency says

were Ali's statements under oath at the January 2008 interview.




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            Immigration   Services       Officer   Susan        Coller,   in    a

memorandum to the case file dated October 31, 2008, recommended

denying the I-130 petition.       The memorandum drew attention to the

false documentation Ali had submitted in support of his Diversity

Immigrant Visa application, and to the fact that "[t]he new

affidavits [we]re self-serving to the latest I-130."

            On November 14, 2008, USCIS sent Hassan a denial of her

I-130 petition.     The denial reiterated that visa petitioners bear

the burden of establishing their eligibility for the benefit

sought.     See Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA

1966).    It pointed out that Lewis' new affidavit "contradict[ed]

her previous oral and written testimonies" and that the new

evidence meant to prove Lewis' cohabitation with Ali in New

Hampshire    was   inconsistent   with    her   receipt    of    Massachusetts

welfare benefits at her Boston address through at least 1998.                  It

concluded that "USCIS ha[d] clear and convincing evidence that

[Ali] had previous involvement in a fraudulent marriage."

            The USCIS denial informed Hassan that she could file a

motion to reopen.     See 8 C.F.R. § 103.5(a)(2) ("A motion to reopen

must state the new facts to be provided in the reopened proceeding

and be supported by affidavits or other documentary evidence.").

Hassan did not file such a motion, nor at any time between the

NOID and the final decision did she request to file additional




                                   - 9 -
material beyond what was filed in response to the NOID, or request

to have an evidentiary hearing.

              Hassan    sought    review     from   the    Board    of   Immigration

Appeals,      arguing    primarily    that    substantial      evidence     did   not

support the denial.        She did not argue that the agency was obliged

to provide her with cross-examination or that she had requested

it.   The BIA dismissed her appeal on April 19, 2011, finding that

"the record contain[ed] substantial and probative evidence of

prior marriage fraud."

              On June 2, 2015, Ali and Hassan filed this lawsuit in

federal court.         Their complaint alleged that USCIS had violated

their Fifth Amendment procedural due process rights by denying the

I-130       petition    without    offering     a   pre-decision         evidentiary

hearing.      This is the only claim presented on appeal.2                On June 7,

2016,       the   magistrate      judge    issued    an     order    granting     the

government's motion for summary judgment.                 With respect to the due

process claim, the magistrate judge concluded that "even assuming

that the plaintiffs have a constitutionally protected liberty

interest in this matter, due process did not require an evidentiary

hearing."         Ali, 2016 WL 3190190, at *6.               As to whether the




        2 The complaint also alleged (1) that USCIS had
erroneously focused its inquiry on 1997, when Lewis filed her I-
130 petition, rather than on 1993, when she married Ali; and
(2) that USCIS' decision was not supported by substantial evidence.
The district court rulings on those issues are not appealed.


                                      - 10 -
plaintiffs had shown prejudice from the purported denial of due

process, she concluded that "the plaintiffs ha[d] not shown how a

cross-examination of Lewis -- or of immigration agents concerning

a seventeen-year-old interview with Lewis -- would potentially

change [USCIS'] credibility determinations or ultimate decision."

Id. at *8.   She also decided the other issues in the defendants'

favor.

          On appeal, the plaintiffs focus exclusively on the due

process issue and no longer press their other arguments.

                                  II.

          Federal jurisdiction was invoked in this case under the

Administrative Procedure Act ("APA"), which instructs federal

courts to "hold unlawful and set aside agency action, findings and

conclusions found to be . . . contrary to constitutional right,

power, privilege, or immunity."    5 U.S.C. § 706(2), (2)(B).   Here,

the claimed constitutional procedural due process violation is the

failure sua sponte to provide a pre-decision evidentiary hearing,

at which the plaintiffs say they would have cross-examined Lewis

and the INS agents who interviewed her, in an effort to rebut

USCIS' evidence of marriage fraud.

          The APA also instructs courts to take "due account . . .

of the rule of prejudicial error."      Id. § 706.   That statutory

language references the harmless error standard that appellate

courts normally apply when reviewing lower court decisions or


                             - 11 -
administrative action.    See Shinseki v. Sanders, 556 U.S. 396,

406–07 (2009).   Indeed, the Supreme Court has characterized § 706

as an "administrative law . . . harmless error rule."   Nat'l Ass'n

of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659–60 (2007)

(quoting PDK Labs. Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786,

799 (D.C. Cir. 2004)) (choosing not to remand to agency because

purported agency error "had no effect on the underlying agency

action being challenged").

          Whether or not Hassan or Ali has a protected liberty

interest invoked by the denial of the I-130 petition,3 and whether

or not that interest was offended by the procedures followed, the

plaintiffs have not met their burden to show how the purported

error prejudiced them.

          Hassan and Ali never asked USCIS for the opportunity to

put on additional evidence, nor for an evidentiary hearing.   Their

complaint states that no such hearing occurred, but does not allege

that the plaintiffs asked for one when they responded to the NOID.

And even assuming the agency, rather than the plaintiffs, would be


     3    We will assume arguendo that Kerry v. Din, 135 S. Ct.
2128 (2015), does not doom this suit by foreclosing any due process
claim at all. In our view, Din did not produce a definitive answer
to the question of whether a citizen has a liberty interest,
warranting due process, in residing in the United States with his
or her noncitizen spouse.     And we will also assume that Din's
holding that the process given there -- much less than was given
here -- was sufficient, see id. at 2139–41 (Kennedy, J.,
concurring), does not control the outcome of this case, which
involves a noncitizen husband already in the United States.


                              - 12 -
responsible for producing the two agents involved in Lewis' 1999

interview (an assertion not made by the plaintiffs), the plaintiffs

never asked for production of the agents, much less to examine the

agents about events that took place seventeen years earlier.4

               There is no reason to think that, if an evidentiary

hearing occurred, USCIS would not continue to rely on its own

official records contemporaneous to the 1999 interview, as well as

Lewis' signature affirming what appears to be her own handwritten

statement, and suddenly credit Lewis' 2008 affidavit claiming she

had never made the statement.           Lewis' credibility as to the 2008

recanting          affidavit    was   severely      undercut    by   the    flat

inconsistency between the contemporary statement and the later

statement, and by her withdrawal of the petition.               Her statements

that she had resided with Ali in New Hampshire for a period are

undercut by the Massachusetts welfare records.                  As for the INS

agents who interviewed Lewis, who are the only other persons aside

from       Lewis   that   the   plaintiffs   seek   to   have   testify    at   an

evidentiary hearing, the plaintiffs have made no showing that the

agents would be available to be interviewed or would have anything

different to say about the 1999 interview after seventeen years.

               Further, to the extent the plaintiffs argue that Lewis'

credibility might have been enhanced by live testimony or further


       4  The record is silent as to whether the two agents are
still employed by USCIS or by any other government agency.


                                      - 13 -
evidence from her, Lewis acted as a witness for the plaintiffs in

the post-NOID proceedings, not for the agency.    She knew of the

other evidence undermining her newfound recantation, but addressed

none of it by affidavit.   Indeed, no offer of proof was made to

either the agency or the district court as to what the other

evidence was that the plaintiffs wished to produce. The plaintiffs

simply have not shown how their preferred procedure would have

made any difference.

                              III.

          We affirm the judgment of the district court.




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