Jerry Perry v. John Ashcroft, Attorney General of the United States

* Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-4601
___________
JERRY PERRY,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
________________________
On Petition for Review of an Order of
the Board of Immigration Appeals
INS No. A26-461-240
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 29, 2004
BEFORE: NYGAARD and FUENTES, Circuit Judges,
and O’NEILL,* District Judge.
(Opinion Filed: March 8, 2004 )
________________________
OPINION OF THE COURT
________________________

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1 Bennett did not testify because none of the parties have been aware of her whereabouts
for several years.
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FUENTES, Circuit Judge:
Appellant Jerry Perry is a 46-year old Liberian who married a U.S. citizen, Francine
Bennett (a/k/a Francine Perry) in 1986, and who subsequently became a conditional
permanent resident of the U.S. In 1989, Perry and Bennett applied to remove the conditional
status of his residency, but the INS did not respond by the time they got divorced, in 1993.
In1994, the INS informed Perry that he would be deported for participating in a sham
marriage calculated to effect his entry into the U.S. At an immigration hearing in November
1996, Perry testified on his own behalf. The INS rebutted his testimony with its own witness,
Durrell Wilks, a friend of Bennett’s who testified that Perry’s marriage was a sham.1 The IJ
ordered Perry’s deportation, finding that Wilks was more credible than Perry in his account
of the Perry-Bennett marriage. The BIA subsequently affirmed the IJ without any opinion.
On appeal, Perry argues that the IJ’s finding of a sham marriage was error, largely based on
the IJ’s improperly crediting Wilks’s testimony over Perry’s. Specifically, Perry asserts that
Wilks’s testimony was extremely unreliable and rife with inadmissible hearsay.
Alternatively, Perry contends that he should be granted an extreme hardship waiver because
the transition back to Liberia would be too difficult for him. Because we do not find that a
reasonable fact-finder would be compelled to disagree with the IJ, we affirm the IJ’s
decision.
I.

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Before the IJ, Perry testified that he met Bennett in September 1986 at a religious
service, and the two began dating shortly thereafter. Perry alleged that he and Bennett lived
together happily after their marriage until 1989, when he began to suspect that she was using
drugs. According to Perry, the drug use culminated in their daughter being stillborn in June
1989. Two years later, Bennett left Perry, who has not seen her since. Finally, Perry testified
that he is now remarried to a naturalized U.S. citizen, with whom he has fathered a child.
Perry claims that he cannot return to Liberia because it would mean leaving his new family
behind, and he would have trouble finding a job and treatment for his high blood pressure
in Liberia.
Wilks was the only other witness before the IJ. Wilks testified that Bennett told him
that her marriage with Perry was a sham set up by two men named Ben Binda and Augustis
Genat, who paid Bennett to marry Perry. Wilks further testified that Binda and Genat paid
Wilks for participating in a fraudulent marriage of his own. Contrary to Perry’s testimony,
Wilks alleged that Bennett actually lived with him from 1986 to about 1990 with their
daughter Tiffany, who was born in 1984. Wilks admitted that he was a longtime user of
marijuana and crack cocaine. Despite Wilks’s history of drug use and his conceded
participation in his own sham marriage, the IJ credited his testimony over Perry’s largely
based on the IJ’s belief that Wilks had nothing to gain from his testimony. Indeed, the IJ
concluded that Wilks faced the chance of being harmed by testifying because his testimony
included self-incriminating admissions.

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II.
The parties agree that this Court reviews the IJ’s findings of fact to determine whether
they are supported by substantial evidence. E.g., Immigration and Naturalization Serv. v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Especially in the context of credibility
determinations, the “substantial evidence” standard mandates a high degree of deference.
Id. This standard has been codified in statutory law: “the 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) ; accord, e.g., Lukwago v. Ashcroft, 329 F.3d 157, 167
(3rd Cir. 2003). Thus, this Court’s role is not to second-guess the IJ, or to weigh the
evidence, but to overturn the IJ only if the facts compel us to conclude to the contrary.
III.
Perry first tries to undermine Wilks’s credibility, arguing that Wilks’s testimony was
rife with troubling inconsistencies and omissions. All Perry can point to, however, are
instances where Wilks had trouble remembering collateral details of his testimony, such as
exact dates of certain events. Perry does not offer any examples of Wilks contradicting
himself as to any central matter of his testimony. Perry also impeaches Wilks with his history
of drug use and participation in a sham marriage, but the IJ could permissibly believe that
Wilks was telling the truth despite his troubled past. Finally, Perry attacks the IJ’s conclusion
that Wilks’s testimony was believable because he had no reason to lie. Perry contends that
Wilks could have been testifying in return for more lenient treatment from the government

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2 Perry also claims that he was denied due process by the use of hearsay affidavits against
him at the hearing. The affidavits would only impair his due process rights if their admission
was fundamentally unfair, however, and Perry does not come close to meeting this standard.
Moreover, the particular affidavits that Perry is objecting to did not seem to play a large role in
the IJ’s decision relative to, for example, Wilks’s testimony, so there is no indication that Perry
suffered any prejudice.
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for his admitted participation in a fraudulent marriage, a federal offense.
Although it is true that Wilks may have had a personal interest in testifying, we cannot
say that the IJ erred in finding him more credible than Perry. Even if Wilks was testifying
in part to improve his standing with federal prosecutors, he was not promised immunity for
his testimony, and a factfinder could reasonably still deem Wilks to have less reason for lying
than Perry. Furthermore, Perry’s credibility was undercut by his inability to remember
Bennett’s daughter’s name, or information like Bennett’s residence or place of work during
their courtship. In essence, the IJ had two incompatible testimonial accounts from Wilks and
Perry, and chose to credit the former because of their demeanors and their relative interests
in the case. At most, Perry has shown that the IJ could have plausibly credited Perry over
Wilks; Perry has not met his burden, however, of showing that the IJ was compelled to credit
Perry over Wilks. Consequently, we affirm the IJ’s finding that Perry’s marriage was in bad
faith.2
IV.
Perry’s alternate argument, that moving back to Liberia would pose too great a
hardship, is also unavailing. Perry was not able to corroborate the existence of his new wife
and daughter, and as even Perry admits, the fact that life would be harder in Liberia is not

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enough to show the extreme hardship required for a waiver of his deportation for fraud.
Perry complains that the IJ did not exhaustively discuss the relevant factors to consider for
extreme hardship, see Matter of Ige, 20 I. & N. Dec. 880, 882-83 (1994); and explain how
each weighed against Perry. Ige never requires the IJ to make any such comprehensive
analysis, however, and puts the burden on petitioners to justify the “exceptional” waiver.
Id. at 882. Moreover, Ige is clear that the extreme hardship waiver is to be narrowly
construed and not freely given. Id. Here, Perry simply did not submit any evidence that
would justify, let alone compel, a finding of extreme hardship in his deportation to Liberia.
Accordingly, we deny the petition for review.

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