                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      December 11, 2014

                                                                          Elisabeth A. Shumaker
                                   TENTH CIRCUIT                              Clerk of Court

 KONAN Y. KOUADIO,

        Petitioner,
                                                              No. 14-9501
 v.                                                       (Petition for Review)

 ERIC H. HOLDER, JR., United States
 Attorney General,

        Respondent.


                              ORDER AND JUDGMENT*


Before HOLMES, MATHESON, and McHUGH, Circuit Judges.




       Petitioner Konan Kouadio appeals from a final order of removal from the Board of

Immigration Appeals (the Board). In the removal order, the Board affirmed the

immigration judge’s (IJ) determination that Mr. Kouadio was removable and the IJ’s


        * After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
denial of Mr. Kouadio’s two applications for cancellation of removal. Exercising

jurisdiction pursuant to 8 U.S.C. § 1252, we affirm.

                                    BACKGROUND

       Mr. Kouadio is a native and citizen of the Ivory Coast. He was admitted to the

United States in April 1994 as a nonimmigrant B2 visitor authorized to remain in the

United States until October 2, 1994. Mr. Kouadio remained in the United States beyond

that date without authorization.

       On September 11, 2000, Mr. Kouadio married Mary Rodriguez, a U.S. citizen.

According to Mr. Kouadio, he and Ms. Rodriguez lived together for approximately a year

and a half after they married, had a good marriage, and did not marry to affect his

immigration status. On March 5, 2001, Ms. Rodriguez filed a Petition for Alien Relative

(Petition) on behalf of Mr. Kouadio, which was meant to support his request for an

adjustment of status based upon his marriage to a U.S. citizen.

       On April 29, 2004, Ms. Rodriguez formally withdrew her Petition. In her

withdrawal affidavit, Ms. Rodriguez asserted she married Mr. Kouadio to help him obtain

U.S. citizenship, and that Mr. Kouadio paid her $3,000 initially, and $300 per month, to

do so. According to Ms. Rodriguez, the couple had never lived together and had not

consummated the marriage.

       On July 23, 2004, the Department of Homeland Security (DHS) initiated removal

proceedings against Mr. Kouadio. DHS charged Mr. Kouadio with removability on three

independent grounds: (1) as an alien inadmissible at the time of adjustment of status
                                            -2-
based on an attempt to procure admission through fraud or willful misrepresentation of

fact;1 (2) as an alien who, once lawfully admitted, remained in the U.S. longer than

permitted;2 and (3) as an alien present in the U.S. in violation of the law.3 Mr. Kouadio

conceded his removability under the second and third grounds, but contested his

removability under DHS’s first asserted ground. Specifically, Mr. Kouadio disputed

DHS’s allegation that he married Ms. Rodriguez to fraudulently affect his immigration

status.

          At Mr. Kouadio’s removal hearing, he testified his marriage to Ms. Rodriguez was

not a sham. He claimed the couple was happily married initially, but began having

problems when Ms. Rodriguez experienced financial trouble and her car was repossessed.

According to Mr. Kouadio, Ms. Rodriguez asked him to purchase a car for her and

threatened to report him to immigration officials if he did not comply. He testified she

withdrew her Petition in revenge for his refusal to do so.

          At the hearing, DHS submitted Ms. Rodriguez’s sworn statement withdrawing her

Petition and asserting Mr. Kouadio paid her to enter into a fraudulent marriage for

immigration purposes. DHS also questioned Mr. Kouadio about information he included

in two applications for asylum filed shortly after he entered the United States. In his first


          1
              See 8 U.S.C. § 1227(a)(1)(A); id. § 1182(a)(6)(C)(i).
          2
              See id. § 1227(a)(1)(C)(i).
          3
              See id. § 1227(a)(1)(B).

                                                 -3-
asylum application dated July 5, 1994, Mr. Kouadio stated he was married to a Ms.

Toure. But in his second asylum application dated November 17, 1994, Mr. Kouadio

asserted he was unmarried. When asked about his relationship with Ms. Toure, Mr.

Kouadio testified the two were never formally married but lived together in Colorado. He

argued his statement in his first asylum application that the two were married was not

false because they were living together at the time and Colorado law recognized common

law marriage after three months of cohabitation. He further testified he therefore

considered Ms. Toure to be his spouse under Colorado law, but the couple had never

obtained any documentation of the marriage. However, Mr. Kouadio conceded he and

Ms. Toure had never filed for divorce or otherwise acted officially to terminate the

relationship.

       After considering the documentary evidence, as well as Mr. Kouadio’s testimony,

the IJ concluded Mr. Kouadio had willfully misrepresented a material fact in his change

of status application by entering into a fraudulent marriage with Ms. Rodriguez.

Specifically, the IJ found Mr. Kouadio’s testimony about his marriage to Ms. Rodriguez

was “called into doubt” by the fact he concealed his earlier common law marriage to Ms.

Toure. Certified Administrative Record (CAR) 24. Moreover, the IJ found Ms.

Rodriguez’s statement credible that Mr. Kouadio had paid her to enter into the marriage

to affect his immigration status. Accordingly, the IJ concluded DHS had demonstrated by

clear and convincing evidence that Mr. Kouadio was removable pursuant to 8 U.S.C.

§ 1227(a)(1)(A) as an alien who was inadmissible for attempting to procure an
                                            -4-
immigration benefit by fraud or willful misrepresentation of a material fact. Because the

IJ sustained the first charge of removability and Mr. Kouadio conceded the other two

charges, he was ultimately deemed removable on three independent grounds.

       The IJ then turned his attention to Mr. Kouadio’s two applications for cancellation

of removal.4 First, Mr. Kouadio sought cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(2), which provides for cancellation of removal for a battered spouse.

Mr. Kouadio alleged he qualified as a “battered spouse” under the statute because he

suffered “extreme cruelty” at Ms. Rodriguez’s hands during the couple’s marriage. CAR

169. The IJ rejected Mr. Kouadio’s request for cancellation because he had already

determined Mr. Kouadio’s marriage to Ms. Rodriguez was a sham, which precluded a

finding Mr. Kouadio was a battered spouse. As an alternative basis to deny Mr.

Kouadio’s application for cancellation of removal, the IJ determined Mr. Kouadio had

not met his burden of establishing he met the definition of a battered spouse.

       Second, Mr. Kouadio sought cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1), which allows for cancellation of removal for certain aliens who have been

in the country for at least ten years and whose removal would “result in exceptional and

extremely unusual hardship to the alien’s spouse . . . who is a citizen of the United

States.” Mr. Kouadio’s second application for cancellation of removal referenced only

       4
        Mr. Kouadio also requested voluntary departure pursuant to 8 U.S.C. § 1229c.
The IJ denied this request because he found Mr. Kouadio had failed to establish good
moral character for the requisite statutory period. Mr. Kouadio has not appealed this
determination.

                                             -5-
Ms. Rodriguez, who could not be a qualifying spouse because the couple had divorced in

2005. As such, the IJ concluded Mr. Kouadio had failed to establish that he had a

qualifying U.S. relative. As an alternate ground for its decision, the IJ determined Mr.

Kouadio’s common law marriage to Ms. Toure would have rendered any subsequent

marriage invalid. Consequently, the IJ held Mr. Kouadio could make no claim of undue

hardship as to a U.S. spouse based on his marriage to Ms. Rodriguez.

       Mr. Kouadio appealed to the Board, contesting both the IJ’s determination that he

was inadmissible for attempting to obtain an immigration benefit by fraud or willful

misrepresentation and the IJ’s denial of his applications for cancellation of removal.

Before the Board, Mr. Kouadio argued DHS failed to meet its burden of establishing his

inadmissibility on the basis of a fraudulent marriage by clear and convincing evidence.

The Board found no reason to disturb the IJ’s determination because it concluded Ms.

Rodriguez’s statement constituted sufficient evidence to support the determination that

the marriage was a sham.

       The Board then addressed Mr. Kouadio’s applications for cancellation of removal.

The Board declined to reach the issue of whether Mr. Kouadio’s claim of being a battered

spouse was precluded by the IJ’s determination that his marriage to Ms. Rodriguez was

fraudulent. Instead, the Board affirmed on the alternative ground that Mr. Kouadio’s

“bare and unsupported assertions” of abuse were insufficient to meet his burden of

establishing he was a battered spouse. CAR 5.


                                            -6-
       As to Mr. Kouadio’s second application for cancellation of removal, the Board

declined to address the IJ’s determination that Mr. Kouadio’s common law marriage to

Ms. Toure precluded him from seeking cancellation on the basis of extreme hardship to a

U.S. spouse. Rather, the Board affirmed on the alternative ground that Mr. Kouadio’s

application for cancellation of removal listed only Ms. Rodriguez as his qualifying U.S.

spouse. As there was no dispute Ms. Rodriguez and Mr. Kouadio were divorced at the

time of his removal hearing, the Board concluded Mr. Kouadio’s application did “not

indicate a current qualifying relative upon which a claim of cancellation of removal can

be predicated.” CAR 4. Mr. Kouadio appeals.

                                      DISCUSSION

       When, as in this case, a single member of the Board affirms the IJ’s ruling, this

court reviews the Board’s ruling and “will not affirm on grounds raised in the IJ decision

unless they are relied upon by the [Board] in its affirmance.” Uanreroro v. Gonzales, 443

F.3d 1197, 1204 (10th Cir. 2006); see also 8 C.F.R. § 1003.1(e)(5). However, “we are not

precluded from consulting the IJ’s more complete explanation of those same grounds.”

Uanreroro, 443 F.3d at 1204. The agency’s “findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4). Accordingly, our review looks to the administrative record to ensure

“factual determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Uanreroro, 443 F.3d at 1204. We review the


                                            -7-
agency’s legal determinations de novo. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th

Cir. 2004).

       To resolve this appeal, we address two issues. First, we examine Mr. Kouadio’s

challenge to the Board’s determination that he is removable on the basis he attempted to

obtain immigration benefits through a fraudulent marriage to Ms. Rodriguez. Second, we

examine the denial of his application for cancellation of removal on the basis that he was

a battered spouse.5

       Mr. Kouadio frames his argument in his brief as a due process argument. But he

fails to cite any relevant legal authority to support an assertion that his removal

proceedings were constitutionally infirm. Though he correctly asserts aliens are entitled

to due process in removal proceedings, he has failed to articulate a cognizable argument

under the Due Process Clause. Accordingly, we do not consider this alleged

constitutional argument further. See Fed. R. App. P. 28(a)(8); Holmes v. Colo. Coal. for

Homeless Long Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (refusing to

consider inadequately briefed arguments on appeal).




       5
        The Government argues Mr. Kouadio has waived any challenge to the denial of
his second application for cancellation of removal because he failed to raise it in his
opening brief. Having reviewed the briefing, we agree. Therefore, we do not consider
Mr. Kouadio’s challenge to the denial of his second application for cancellation of
removal further. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)
(noting arguments not raised in the opening brief are generally waived).


                                             -8-
       To the extent Mr. Kouadio directly challenges the Board’s determination of

removability, he argues DHS failed to prove by clear and convincing evidence that his

marriage to Ms. Rodriquez was fraudulent. As the Board noted, DHS presented evidence

in the form of a sworn statement from Ms. Rodriguez in which she averred Mr. Kouadio

paid her to marry him to fraudulently affect his immigration status and that the couple

had never lived together or consummated the marriage. In response, Mr. Kouadio offered

only limited documentary evidence in support of his contention the marriage was bona

fide. Though he claimed to have additional evidence, he never presented it to the IJ or the

Board. Based, on this record, we agree with the Board that Ms. Rodriguez’s statement

provided substantial evidence that the marriage was fraudulent.6

       Because we conclude the Board did not err in finding Mr. Kouadio removable, we

next turn our attention to his application for cancellation of removal. Mr. Kouadio

challenges the Board’s determination that he did not fall within the definition of a

battered spouse. But we lack jurisdiction to review that ruling. The Board determined Mr.

Kouadio failed to demonstrate he met the definition of a battered spouse under USCIS

regulations, which define a battered spouse as one who “has been battered or subjected to


       6
        As both the IJ and the Board noted, Mr. Kouadio has conceded his removability
on two other independent grounds: as an alien who, once lawfully admitted, remained in
the U.S. longer than permitted and as an alien present in the U.S. in violation of the law.
Mr. Kouadio has not challenged these alternative grounds for removal on appeal. As
such, even if this court were to determine the Board erred in affirming the IJ’s
determination that Mr. Kouadio’s marriage to Ms. Rodriguez was fraudulent, it would
make no difference to Mr. Kouadio’s removability.

                                            -9-
extreme cruelty by a spouse . . . who is or was a United States citizen.” 8 U.S.C.

§ 1229b(b)(2)(A)(i)(I); accord 8 C.F.R. § 204.2(c)(1)(i)(E). Though Mr. Kouadio

claimed he suffered “extreme cruelty” at the hands of Ms. Rodriguez because she

“manipulated him, deceived him, and committed fraud,” CAR 44, the Board found Mr.

Kouadio’s “bare and unsupported assertions” of abuse were insufficient to establish he

suffered “extreme cruelty,” CAR 5. Whether an alien has demonstrated he suffered

“extreme cruelty” under § 1229b involves the exercise of agency discretion and is

therefore not reviewable by this court. See Perales-Cumpean v. Gonzales, 429 F.3d 977,

982–83 (10th Cir. 2005); 8 U.S.C. § 1252(a)(2)(B) (holding court had no jurisdiction to

review “any judgment regarding the granting of relief under section . . . 1229b”). As a

result, we lack jurisdiction to review the Board’s discretionary determination.

                                     CONCLUSION

       For the foregoing reasons, we AFFIRM.

                                          ENTERED FOR THE COURT


                                          Carolyn B. McHugh
                                          Circuit Judge




                                            -10-
