                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0082n.06

                                            No. 12-3070

                           UNITED STATES COURT OF APPEALS
                                                                                           FILED
                                FOR THE SIXTH CIRCUIT
                                                                                       Jan 22, 2013
                                                                                 DEBORAH S. HUNT, Clerk

ERNEST ADU-ADJEI,                                         )
                                                          )
       Petitioner,                                        )         ON PETITION FOR REVIEW
                                                          )         OF A FINAL ORDER OF THE
               v.                                         )         BOARD OF IMMIGRATION
                                                          )         APPEALS
ERIC H. HOLDER, JR., Attorney General,                    )
                                                          )
       Respondent.                                        )
                                                          )
                                                          )



BEFORE: SILER, GRIFFIN, and STRANCH, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Petitioner Ernest Adu-Adjei, a native and citizen of Ghana, seeks review of the Board of

Immigration Appeals’ (“Board”) decision affirming an immigration judge’s (“IJ”) removal order.

Because substantial evidence supports the IJ’s finding that Adu-Adjei entered into a fraudulent

marriage in order to obtain permanent residency in the United States, we deny his petition for review.

                                                  I.

                                                 A.

       Ernest Adu-Adjei entered the United States in September 2003 pursuant to a student visa.

Friends introduced him to Charlay Bay in late April 2006, and the two married a week later, on
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May 5, 2006. Three weeks into the marriage, Adu-Adjei applied to adjust his immigration status

based on an immigrant visa petition Bay filed concurrently on his behalf.

       Several months later, Bay and Adu-Adjei appeared before Citizenship and Immigration

Services (“CIS”) for an interview in connection with Bay’s visa petition. During an interview with

District Adjudication Officer Allan Shaub, Bay admitted that her marriage to Adu-Adjei was not

“real” and that she had been paid to marry and help him obtain permanent residency in the United

States. Shaub notified Julie Hetzel, a CIS fraud and national security officer, who briefly spoke with

Bay before contacting Immigration and Customs Enforcement Senior Special Agent Kenneth Teich.

       Teich interviewed Bay and Adu-Adjei separately. Bay again confessed that she had been

paid to marry Adu-Adjei and help him obtain permanent residency. Teich then interviewed Adu-

Adjei, who denied that the marriage was a fraud. According to Teich, Adu-Adjei’s story of how the

two met was “painful to listen to” and in no way matched what Bay had told him earlier. When

Teich said that Bay had already confessed and suggested that Adu-Adjei be truthful, Adu-Adjei

requested a lawyer. The interview promptly ended. Teich arrested Adu-Adjei and filed a report

documenting the interview (Form I-213). Bay formally withdrew her visa petition.

       CIS denied Adu-Adjei’s adjustment application because an immigrant visa was not

immediately available to him, Bay having the same day withdrawn her visa petition.

                                                 B.

       The Department of Homeland Security (“DHS”) initiated removal proceedings against Adu-

Adjei, charging him as removable on the ground that he was inadmissible at the time he tried to


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adjust his status, see 8 U.S.C. § 1227(a)(1)(A); he was allegedly inadmissible because he tried to

procure an immigrant visa by fraud, see id. § 1182(a)(6)(C)(i).

       In July 2007, Adu-Adjei appeared before an immigration judge for an initial hearing. The

IJ continued the matter after Adu-Adjei said he needed time to retain an attorney. The IJ advised that

he would ask Adu-Adjei at the next hearing to admit or deny DHS’s allegations. Adu-Adjei

appeared again before the IJ three months later, this time with counsel. His attorney sought a

continuance because she was unprepared to admit or deny the allegations, Adu-Adjei having hired

her just the day before. The IJ admonished Adu-Adjei for his delay, but nevertheless granted a one

week continuance. At the next hearing, Adu-Adjei admitted some of the factual allegations, denied

others, and denied the removability charge.

       One year later, the parties appeared for an evidentiary hearing. DHS counsel indicated that

he would offer into evidence Special Agent Teich’s Form I-213 and Bay’s written withdrawal of her

visa petition. Adu-Adjei’s counsel objected to the admission of any of Bay’s hearsay statements

contained in the two documents. Citing Dallo v. INS, 765 F.2d 581 (6th Cir. 1985), counsel argued

that hearsay is inadmissible in removal proceedings unless DHS can show that, despite its reasonable

efforts, it is unable to locate the declarant for cross-examination. Counsel asserted that DHS had

made no efforts to secure Bay’s in-court testimony. DHS counsel responded that his notes indicated

that the colleague who prepared the file had tried to contact Bay, but was unsuccessful. When the

IJ mentioned that he would later have to make a finding regarding the government’s efforts to obtain

Bay’s testimony before it would admit and consider her hearsay statements, DHS counsel asked for


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a continuance to try again to obtain Bay’s testimony or have the colleague (who was then absent)

testify regarding her efforts to locate Bay. The IJ continued the hearing over Adu-Adjei’s objection.

       In May 2009, Bay, Officer Shaub, Special Agent Teich, and Adu-Adjei testified at an

evidentiary hearing. After hearing the testimony, the IJ sustained the removability charge, finding

by clear and convincing evidence that Adu-Adjei entered into a fraudulent marriage in order to

secure an immigrant visa. He found Bay, Teich, and Shaub credible and deemed Adu-Adjei’s

testimony “unconvincing.” Adu-Adjei was ordered removed to Ghana. The Board upheld the IJ’s

decision. This timely petition for review followed. We stayed Adu-Adjei’s removal pending a

decision on his petition.

                                                 II.

       When the Board affirms an IJ’s decision but adds its own remarks, as it did here, we review

both decisions together. Cruz-Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir. 2010). We review

questions of law de novo and consider factual findings using the substantial-evidence standard.

Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Under this standard, “administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006); see

also Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (noting that § 1252(b)(4)(B) “basically

codifies the Supreme Court’s substantial evidence standard”).

                                                 III.

                                                 A.


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        Adu-Adjei first challenges the Board’s finding that he sought to procure an immigrant visa

through marriage fraud. The Board’s finding in this regard is one of fact, so we review it for

substantial evidence. Fang Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir. 2008). DHS had the

burden to prove Adu-Adjei’s removability by “clear and convincing evidence.” 8 U.S.C. §

1229a(c)(3)(A). Combining our substantial-evidence review standard with DHS’s underlying burden

of proof, Adu-Adjei’s task before us is to demonstrate that a reasonable adjudicator would be

compelled to conclude that, contrary to the Board’s finding, the record does not contain clear and

convincing evidence that he engaged in marriage fraud. See Hassan v. Holder, 604 F.3d 915, 925

(6th Cir. 2010); see also Hana v. Gonzales, 400 F.3d 472, 475–76 (6th Cir. 2005).

        “A marriage was a sham if the bride and groom did not intend to establish a life together at

the time they were married.” King v. Holder, 570 F.3d 785, 788 (6th Cir. 2009) (internal quotation

marks omitted); see In re Soriano, 19 I. & N. Dec. 764, 765 (BIA 1988). The parties’ conduct before

and during the marriage is relevant to their intent at the time they married. “The inquiry involves

deeply personal questions, including those that probe the couple’s courtship, their shared

experiences, their living arrangements after marriage, and the degree to which they share assets and

liabilities.” Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010); cf. 8 C.F.R. § 216.5(e)(2).

                                                   B.

        Overwhelming record evidence supports the Board’s finding that Adu-Adjei and Bay never

intended to establish a life together. First of all, there is direct evidence of fraud. Bay testified that

the marriage was a fraud, that she married Adu-Adjei in exchange for money, and that she never


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intended to establish a life with him. She said she was initially promised $4,000 to marry Adu-Adjei

and petition for a visa on his behalf.1 She received $1,300 prior to the CIS interview, $800 of which

came immediately after the two were married. The IJ found Bay credible, and the Board did not

disturb that finding. The record does not compel a contrary credibility finding. Bay’s credited

testimony by itself is enough to support the Board’s decision on substantial-evidence review. See,

e.g., Singh v. Holder, 433 F. App’x 512, 513 (9th Cir. 2011); Gazdikova v. Holder, 423 F. App’x

731, 732 (9th Cir. 2011).

       Apart from the direct evidence of fraud, substantial circumstantial evidence also supports the

Board’s finding. To begin with, the timing of the wedding and the parties’ conduct preceding it are

highly suggestive of fraud. Adu-Adjei and Bay obtained a marriage licence one day after they first

met. And one purpose of their initial meeting, according to Bay, was to set a date for the civil

ceremony. When the two met at city hall to obtain their marriage license, it was just the second time

they had ever seen each other. One week later, they married. No courtship, friendship, or shared

experiences (other than their initial meeting, which Adu-Adjei said lasted roughly five hours)

preceded the marriage.

       The parties’ conduct during marriage also demonstrates a lack of intent to start a life together.

Adu-Adjei and Bay never lived together. When they were married, they resided 600 miles

apart—Adu-Adjei was attending school in Atlanta, Georgia, and Bay lived in Newark, Ohio. Once,



       1
        Bay said at her CIS interview that she was promised $2,500. She explained at the
evidentiary hearing that the amount changed from $4,000 to $2,500.

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when Adu-Adjei visited Ohio two months into the marriage, he stayed with friends in Columbus

instead of staying with Bay, who lived only 40 miles away. Bay believed the girl with whom Adu-

Adjei stayed when he visited was his girlfriend. (Adu-Adjei denied the relationship.) The next time

Adu-Adjei returned to Ohio was in September 2006, for his interview before CIS. Bay never visited

Adu-Adjei in Atlanta. The couple was never intimate together, and thus the marriage was never

consummated. Adu-Adjei never met Bay’s teenage daughter, even though she lived with Bay at the

time Bay married Adu-Adjei.

       Furthermore, Adu-Adjei and Bay did not speak often, and, when they did speak, it was only

for the purpose of furthering their fraud. Bay testified that the first time she spoke with Adu-Adjei

on the phone after they were married was months after the civil ceremony. The purpose of the call

was to set a time to take pictures to submit to CIS in support of Bay’s visa petition. Adu-Adjei also

called Bay to notify her of the upcoming CIS interview. The two met and “traded information for

when [they] went to Immigration.”

       Adu-Adjei responds to this evidence by saying the IJ should have disbelieved Bay because

her testimony was inconsistent with her past statements, she could not remember how much money

she was promised to marry Adu-Adjei, and she was otherwise “extremely unreliable.” The IJ

acknowledged that Bay’s testimony was not fully consistent with her written statement withdrawing

her visa petition and that Bay was addicted to cocaine in 2001 and had felony convictions.

Nevertheless, the IJ found that Bay credibly testified that she married Adu-Adjei only for money.

He noted that her testimony was consistent with the testimony from Shaub and Teich regarding


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Bay’s inability during the CIS interviews to answer basic questions about the marriage. Again, the

record does not compel a contrary credibility finding.

       Adu-Adjei also claims he was unaware Bay was being paid to marry him and that he should

not be punished for Bay’s deception. He testified to having pure intentions, claiming he loved Bay

because she was “like a mother to [him]” and “extremely nice.” He claimed the two spoke on the

phone and texted “all the time.” Finally, he testified that he had no reason to commit fraud to obtain

his residency, because he was already lawfully present in the United States. The IJ found Adu-

Adjei’s testimony regarding his intentions and professed ignorance of the fraud “unconvincing,”

noting in particular that Adu-Adjei had admittedly lied during the CIS interview regarding when and

under what circumstances he met Bay. A reasonable adjudicator would not be compelled to credit

Adu-Adjei’s testimony over Bay’s, which was more consistent with the evidence indicative of

marriage fraud. Substantial evidence supports the Board’s finding that Adu-Adjei attempted to

procure a visa by fraud.

                                                 IV.

       Next, Adu-Adjei argues that the IJ erred when he granted a continuance to allow DHS to

locate Bay for the evidentiary hearing. Without the continuance, he contends, Bay’s hearsay

statements would have been excluded, and the government, lacking admissible evidence of marriage

fraud, could not have met its burden. We review for an abuse of discretion the IJ’s decision to

continue the proceedings. Young Hee Kwak v. Holder, 607 F.3d 1140, 1143–44 (6th Cir. 2010).

Such an abuse exists if the decision “was made without a rational explanation, inexplicably departed


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from established policies, or rested on an impermissible basis such as invidious discrimination.”

Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006) (internal quotation marks omitted).

       The IJ did not abuse his discretion. Adu-Adjei primarily argues that DHS counsel simply

was unprepared for the hearing and that lack of preparation is not “good cause” for a continuance.

See 8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion for continuance for good cause

shown.”). While the government may have been unprepared, Adu-Adjei offers no authority for the

proposition that an IJ abuses its discretion when it affords an unprepared party a continuance.

Indeed, Adu-Adjei was granted two continuances early in the proceedings due to his lack of

preparation (and once despite a warning from the IJ that he be prepared at the next hearing).

Moreover, Bay’s testimony was central to the government’s case, and the basis for its request for a

continuance—to allow it more time to prepare its case—was permissible. We cannot say that

continuing the proceedings at DHS’s request was outside the “range of plausible assessments” from

which the IJ was permitted to choose. King v. Taylor, 694 F.3d 650, 660 (6th Cir. 2012) (internal

quotation marks omitted).

                                                V.

       For these reasons, we deny the petition for review.




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