                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 05a0069n.06

                                   Filed: January 31, 2005

                                         CASE NO. 03-3675

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ESSAM SAMI,                          )
                                     )
         Petitioner,                 )
                                     )        ON PETITION FOR REVIEW OF
                                     )        AN ORDER OF THE BOARD
              v.                     )        OF IMMIGRATION APPEALS
                                     )
IMMIGRATION AND                      )
NATURALIZATION                       )
SERVICE,                             )
                                     )
         Respondent                  )


         BEFORE:       CLAY and SILER, Circuit Judges, and BERTELSMAN,1 District
Judge.

         BERTELSMAN, District Judge. In 1993, petitioner Essam Sami, a native and citizen

of Egypt, obtained conditional permanent resident status on the basis of his marriage to Eugenie

Tawfik, a United States citizen. After he and Tawfik divorced, Sami independently filed an

application for removal of the conditions on his permanent resident status and sought a waiver of

the requirement that Tawfik join the application on the ground that he and Tawfik entered their

marriage in good faith. An Immigration Judge (“IJ”) found that Sami failed to show that he and

Tawfik married in good faith, denied his request for a waiver, and ordered him deported. The


         1
       The Hon. William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision in a written opinion. Sami

seeks review of the BIA’s determination that he failed to demonstrate that his marriage to Tawfik

was in good faith and that he was therefore ineligible for a waiver. For the following reasons,

we affirm the decision of the BIA.

                                                I.

       Sami married Tawfik on September 21, 1993, in Cairo, Egypt. The marriage was

arranged by Sami’s uncle, whose son (Sami’s cousin) was planning to be married to Tawfik’s

sister, Janette. Following their introduction by telephone, Sami and Tawfik corresponded for six

months before Tawfik traveled to Cairo.

       After the wedding in Cairo, the couple spent one week at the home of Sami’s father in

Alexandria, Egypt, where the marriage was consummated. Thereafter, Tawfik obtained an

immigrant visa for Sami based on their marriage, and the couple came to the United States on

separate flights on November 5, 1993. Upon entry to the U.S., Sami was accorded lawful

permanent resident status on a conditional basis based upon his marriage to a U.S. citizen,

pursuant to 8 U.S.C. § 1186a(a).

       In the U.S., the couple lived in the home of Tawfik’s mother in Michigan. They shared a

bedroom for approximately one month until December 1993. The parties dispute whether Sami

moved out of the bedroom voluntarily or whether Tawfik ejected him. In December 1993,

Tawfik informed Sami that she was pregnant with his child. In February 1994, however, Tawfik

voluntarily terminated the pregnancy. Tawfik moved out of her mother’s home in March 1994.

On November 7, 1994, the marriage was terminated by entry of a judgment of divorce.

       On April 18, 1995, Sami filed an application for waiver of the obligation to file a joint


                                                2
application in order to remove his conditional status on the basis that his marriage to Tawfik,

although it had been terminated, was entered into in good faith. The INS District Director

denied the application and deportation proceedings commenced. The INS thereafter issued a

show cause order charging that Sami was deportable on two grounds: (1) that he was an alien

whose conditional resident status was terminated, and (2) that he was an alien who engaged in

marriage fraud.2

       Evidentiary hearings were held before an IJ on July 29, 1999 and August 2, 1999. In a

decision dated September 14, 1999, the IJ denied Sami the requested waiver and found him

deportable based upon the termination of his status as a conditional permanent resident and

based on a presumption that he procured his visa by fraud.3

       Specifically, the IJ found that there was “little” extrinsic evidence that Sami and Tawfik

ever intended to attempt to establish a life together. She also found that Sami was

“argumentative” and “evasive” in his testimony, and that his assertion that he never wanted to

come to the U.S. was belied by the fact that he remained in the country after his separation and

divorce. Further, he had entered into another marriage with a U.S. citizen, deciding to marry just

days after issuance of the show cause deportation order in this matter. The IJ also noted that

Tawfik testified pursuant to a subpoena, and the IJ found her testimony to be “consistent and



       2
        The show cause order was issued on November 8, 1995. As the IJ noted, Sami
remarried another U.S. citizen after his divorce from Tawfik, and his second wife testified that
they decided to marry on November 11, 1995. Based upon this second marriage, Sami also
applied for alternative relief in the form of adjustment of status.
       3
         Having determined that Sami attempted to obtain an immigration benefit through fraud,
the IJ also concluded that he was ineligible for relief in the form of adjustment of status based on
his second marriage to a U.S. citizen.

                                                 3
forthright.” Thus, the IJ concluded that Sami had not carried his burden of proving that he

entered into his marriage to Tawfik in good faith.

        Sami appealed to the BIA, which affirmed the IJ’s decision and dismissed Sami’s appeal

in an opinion dated April 17, 2003.

        This petition for review followed.4

                                                II.

        A.      Standard of Review

        “An alien who challenges the factual basis of a determination by the BIA that he did not

meet his burden of proving his marriage was entered into in good faith for the purposes of 8

U.S.C. § 1186a(c)(4)(B) is entitled to relief only if the determination is not supported by

substantial evidence.” Ayyoub v. INS, No. 02-3679, 2004 WL 618794, at *3 (6th Cir. Mar. 25,

2004) (citation omitted). All this standard requires is that the BIA’s conclusion, based on the

evidence presented, be substantially reasonable. Id.

        “A court may not reverse a factual finding of the BIA merely because it would have

reached a different conclusion based upon its review of the record; rather, ‘in order to reverse the

BIA’s factual determinations, the reviewing court must find that the evidence not only supports a

contrary conclusion, but indeed compels it.’” Id. (quoting Klawitter v. INS, 970 F.2d 149, 152

(6th Cir. 1992)) (italics in original).

        B.      “Good Faith Marriage” Waiver

        Under the Immigration and Nationality Act (“INA”), an alien who has been married to a



        4
       By order dated July 2, 2003, another panel of this court denied Sami’s motion to stay his
removal pending disposition of this petition for review.

                                                 4
U.S. citizen for less than two years obtains the status of an alien lawfully admitted for permanent

residence on a conditional basis. See 8 U.S.C. §§ 1186a(a)(1), (g)(1). The conditional status

remains in effect for two years, after which the alien spouse must satisfy certain requirements to

have the conditional status removed. Specifically, the alien and his or her spouse must file a

joint petition for removal of conditional status and appear for a personal interview with the

immigration authority. See 8 U.S.C. § 1186a(c)(1).

       If the alien cannot satisfy the joint petition and interview requirement, however, he or she

may apply for a waiver of those obligations. In pertinent part, the waiver provision states:

       The Attorney General, in the Attorney General’s discretion, may remove the conditional
       basis of the permanent resident status for an alien who fails to meet the requirements of
       paragraph (1) if the alien demonstrates that –
                                                ...

               (B) the qualifying marriage was entered into in good faith by the alien spouse, but
               the qualifying marriage has been terminated (other than through the death of the
               spouse) and the alien was not at fault in failing to meet the requirements of
               paragraph (1).
                                                ...

       In acting on applications under this paragraph, the Attorney General shall consider any
       credible evidence relevant to the application. The determination of what evidence is
       credible and the weight to be given that evidence shall be within the sole discretion of the
       Attorney General.

8 U.S.C. § 1186a(c)(4)(B).

       The immigration regulations provide that, in considering whether an alien entered into a

qualifying marriage in good faith, the INS “shall consider evidence relating to the amount of

commitment by both parties to the marital relationship.” 8 C.F.R. § 216.5(e)(2). Such evidence

may include:

       (i)     Documentation relating to the degree to which the financial assets and liabilities
       of the parties were combined;

                                                 5
       (ii)    Documentation concerning the length of time during which the parties cohabited
       after the marriage and after the alien obtained permanent residence;

       (iii)   Birth certificates of children born to the marriage; and

       (iv)    Other evidence deemed pertinent by the director.

Id.

       Ultimately, the BIA must determine whether the parties “intended to establish a life

together at the time they were married.” Ayyoub, 2004 WL 618794, at *4 (citation omitted).

The actions of the parties after their marriage may be considered to the extent the actions

illuminate the intent of the parties at the time they married. Id.

       C.      Petitioner’s Claim

       Although Sami presents plausible arguments as to why the IJ could have reached a

different conclusion, the evidence is not so strong as to compel a finding in his favor.

       The IJ, reviewing the factors listed in the INS regulations, found little extrinsic evidence

that Sami and Tawfik ever established a life together after they were married. Within a month of

coming to the United States, the couple ceased sharing a bedroom and never did so again.

Tawfik moved out of her mother’s home a few months later, and the couple rarely saw each

other thereafter. Further, there was no evidence of any shared financial assets or liabilities, such

as bank accounts or tax returns.

       The IJ also found Sami to be “argumentative” and “evasive” in his testimony. Sami

contradicted himself as to the amount of money spent on the wedding. Further, while he stated

that he never wanted to come to the United States in the first place, he remained here after he and

Tawfik separated, thereafter marrying another U.S. citizen just days after learning of the


                                                  6
deportation order in this matter.

       The IJ also found credible Tawfik’s testimony that Sami’s attitude toward her changed

dramatically once they were in the U.S. While Tawfik and Sami dispute who instigated Sami’s

departure from their bedroom5, it is undisputed that they never lived together again after their

first month in the U.S. Tawfik also testified that during an argument, Sami alluded to the fact

that he had only married her to obtain lawful permanent resident status.

       Further, the IJ found Sami to be not credible based, in part, on the fact that letters of

support that he claimed were written to him voluntarily by Tawfik’s younger sister were, by her

own testimony, requested by him.

       All of this evidence, or lack thereof, supports the conclusion that Sami failed to show that

he and Tawfik “were committed to their marital relationship when they married or that they

intended to establish a life together at that time.” Ayyoub, 2004 WL 618794, at *5. The BIA’s

decision is thus supported by substantial evidence, and the petition for review should be denied.

                                                III.

       For the foregoing reasons, we AFFIRM the decision of the BIA.




       5
        Sami claims that Tawfik ejected him from the bedroom, while Tawfik claims he moved
out voluntarily.

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