William Yamoah v. LORETTA E. LYNCH, Attorney General of the United States

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1307
WILLIAM YAMOAH,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States, *
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
Joanna M. Golding and Trupti N. Patel & Associates on brief
for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Kathryn L. DeAngelis, Trial Attorney, Office of
Immigration Litigation, United States Department of Justice, on
brief for respondent.
May 6, 2016
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.

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LIPEZ, Circuit Judge. Petitioner William Yamoah seeks
review of a decision denying his application for adjustment of
immigration status and ordering his removal to Ghana. An
Immigration Judge ("IJ") denied Yamoah's application based on his
statutory ineligibility for adjustment and, in the alternative, on
discretionary grounds. 1 The Board of Immigration Appeals ("BIA")
affirmed the IJ's decision as a matter of discretion. Yamoah
petitions for review of the decision. We dismiss the petition for
want of jurisdiction.
I.
In November 2007, William Yamoah, a citizen of Ghana,
entered the United States on a one-month business visa and stayed
beyond the authorized period. In July 2008, Yamoah married Tashani
Sherrel Strother, whom he had met his first month in the country.
Following the marriage, Yamoah filed an application to adjust his
immigration status to that of a permanent resident based on
Strother's visa petition for her new husband. See 8 U.S.C.
§ 1255(a).
1 The IJ also denied Yamoah's request for voluntary departure
based on ineligibility and, alternatively, as a matter of
discretion. Yamoah appealed to the Board of Immigration Appeals
("BIA"), challenging the IJ's decision that he was ineligible both
for adjustment of status and voluntary departure. The BIA affirmed
the IJ's decision on both issues as a matter of discretion.
Yamoah, however, has not asked this court to review the BIA's
denial of his request for voluntary departure.

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In July 2009, U.S. Citizenship and Immigration Services
("USCIS") denied Strother's petition to classify Yamoah as the
spouse of a U.S. citizen due to discrepancies between Yamoah's and
Strother's USCIS interview responses and Strother's subsequent
failure to respond in a timely fashion to notice of these
discrepancies. The Department of Homeland Security ("DHS") then
charged Yamoah with removability for remaining in the United States
after his visa expired and issued Yamoah a Notice to Appear in
Immigration Court. See 8 U.S.C. § 1227(a)(1)(B). Yamoah conceded
removability and indicated that he sought an adjustment of
immigration status or, in the alternative, voluntary departure.
Before removal hearings began, Strother filed a second visa
petition for Yamoah, which was approved in June 2011.
At the March 2012 hearing to decide Yamoah's application
for adjustment of status, Yamoah and Strother both testified.
Their accounts differed with regard to Yamoah's presence at the
birth of Strother's daughter, the reasons that the couple live
apart, the source of Strother's rent payments, and time spent
together. Additionally, Strother testified that she received
welfare benefits, that she had not told the welfare agency that
she is married to avoid losing some benefits, and that she
understood that failing to disclose her marriage is a crime.
At the conclusion of the testimony, the IJ informed DHS
and Yamoah that they could submit written closing statements, if

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desired. Yamoah submitted several items to the court, including
a written closing statement and three affidavits: one from Strother
and two of his own. 2
On May 1, 2012, the IJ denied Yamoah's application for
adjustment of immigration status and ordered him removed to Ghana.
Based on the "numerous inconsistencies" in Yamoah's and Strother's
testimony, the IJ did not find either credible. The IJ referenced
the explanations (or lack thereof) provided in the post-hearing
submissions with regard to every inconsistency discussed in the
credibility determination. Most significant, according to the IJ,
were the conflicting accounts of Yamoah's whereabouts during
Strother's delivery of her daughter.
After finding Yamoah ineligible for adjustment of status
because he provided false testimony as to the bona fides of his
marriage, see 8 U.S.C. §§ 1182(a)(6)(C)(i), 1255(a), the IJ
explained that even if Yamoah were eligible for adjustment, the
court would deny his application as a matter of discretion. In
making this alternative, discretionary determination, the IJ
listed Yamoah's U.S. citizen wife and child, four-year residence
2 The statement and affidavits attempted to clarify certain
issues and inconsistencies between Yamoah's and Strother's
testimony. The affidavits describe how the two met, the events
surrounding the birth of Strother's daughter, the division of funds
within the household, and time spent together. Furthermore, in
his first affidavit, Yamoah attests that he was unaware that
Strother had committed a crime by not disclosing their marriage to
the welfare agency.

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in the United States, payment of taxes, history of employment, and
nonexistent criminal record as positive factors. The IJ, however,
found that Yamoah's failure to take post-hearing action to correct
Strother's welfare fraud made him a knowing participant in the
fraud. This knowing participation, as well as the IJ's finding
that Yamoah falsely testified about his marriage, led the IJ to
decide that Yamoah's negative equities outweighed his positive
equities, which justified a denial of Yamoah's adjustment
application on discretionary grounds.
Yamoah appealed to the BIA on the basis that the IJ erred
in finding Yamoah ineligible to adjust. The BIA did not address
Yamoah's eligibility, but it affirmed the IJ's discretionary
decision to deny Yamoah's request for adjustment after assessing
Yamoah's positive and negative equities. This timely petition for
review followed.
II.
A. Legal Framework
The Attorney General may, at her discretion, adjust the
status of an alien who has been admitted into the United States to
that of a permanent resident if (1) the alien applies for
adjustment, (2) "the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent
residence," and (3) an immigrant visa is available to him when he
files his application. 8 U.S.C. § 1255(a). An alien may be

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classified as inadmissible, and thus ineligible for adjustment
under the second prong of § 1255(a), if "by fraud or willfully
misrepresenting a material fact, [the alien] seeks to procure . . .
a visa, other documentation, or admission into the United States
or other benefit provided under" the Immigration and Nationality
chapter of the U.S. Code. Id. § 1182(a)(6)(C)(i).
If, however, there are no admissibility obstacles and an
alien in removal proceedings is deemed statutorily eligible, then
the IJ, acting under the authority of the Attorney General,
exercises discretion to determine whether to adjust. See id.
§ 1255(a). Unless the petitioner raises a colorable legal or
constitutional claim, id. § 1252(a)(2)(D), under the Immigration
and Nationality Act ("INA"), the courts lack jurisdiction to review
the discretionary decision on a § 1255 adjustment petition, id.
§ 1252(a)(2)(B), (a)(2)(B)(i) ("[N]o court shall have jurisdiction
to review . . . any judgment regarding the granting of relief under
section . . . 1255 . . . ."); see Mele v. Lynch, 798 F.3d 30, 32
(1st Cir. 2015) ("[W]e lack jurisdiction to review the purely
discretionary decisions made under the . . . statutory sections
identified in § 1252(a)(2)(B)(i)."). We, of course, have
jurisdiction to examine and determine whether we have jurisdiction
under the statute. See Mele, 798 F.3d at 31–32.

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B. Scope of Review
Where the BIA adopts or defers to "the IJ's reasons for
denying [the petitioner's] claims, we review those portions of the
IJ's decision as part of the final decision of the BIA." Onikoyi
v. Gonzales, 454 F.3d 1, 3 (1st Cir. 2006) (alteration in original)
(quoting Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.
2004)). On those issues where the BIA does not adopt or
incorporate the IJ's opinion, we review the BIA's decision alone.
See Sou v. Gonzales, 450 F.3d 1, 6 (1st Cir. 2006); Halo v.
Gonzales, 419 F.3d 15, 18–20 (1st Cir. 2005); see also Yang v.
U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005) ("[W]e
review the judgment of the IJ as modified by the BIA's decision—
that is, minus the single argument for denying relief that was
rejected by the BIA."). As we discuss below, our review differs
with respect to each of Yamoah's individual claims.
C. Analysis
Yamoah's brief includes a plethora of grievances all
under the heading of a due process violation. These grievances
reduce to three primary arguments: (1) the IJ erred when finding
Yamoah ineligible for adjustment, based on a flawed credibility
finding; (2) when making her discretionary decision, the IJ failed
to allow additional testimony pertaining to Yamoah's participation
in Strother's welfare fraud; and (3) the IJ failed to inform Yamoah
of his eligibility for relief via an I-601 waiver.

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1. Ineligibility
Yamoah appealed to the BIA on the ground that the IJ
erred in finding him ineligible for adjustment of status. The
BIA's decision neither addressed the matter of eligibility nor
incorporated the IJ's discussion of the matter into its decision.
Therefore, with respect to the eligibility decision, where the BIA
did not incorporate or adopt the IJ's eligibility determination,
we take the BIA's decision alone. See Halo, 419 F.3d at 18–19.
Unlike the IJ, the BIA did not first find Yamoah
ineligible before going on to explain that, even if he were
eligible, it would deny adjustment as a discretionary matter. Nor
did the BIA summarily affirm the IJ's well-reasoned ineligibility
decision. 3 Under normal circumstances, if the BIA's position is
unclear, we would remand to ensure that, as the reviewing court,
we can adequately evaluate the agency's final decision. See
Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) ("'[A] reviewing
3 The logical inference from the BIA's decision to forego
discussion of eligibility and move directly to a denial of
adjustment as a matter of discretion is that the BIA assumed, for
argument's sake, Yamoah statutorily eligible for adjustment.
After all, the discretionary decision would have been unnecessary
unless the BIA at least assumed Yamoah eligible for adjustment.
See Ruckbi v. INS, 159 F.3d 18, 19 (1st Cir. 1998) ("Once the alien
has established threshold statutory eligibility, he must
additionally demonstrate to the Attorney General's satisfaction
that he merits relief in the exercise of discretion."). Our review
has been complicated by the BIA's silence on eligibility and the
government's similar failure to respond to Yamoah's arguments
concerning the IJ's eligibility decision.

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court . . . must judge the propriety of [administrative] action
solely by the grounds invoked by the agency,' and 'that basis must
be set forth with such clarity as to be understandable.'"
(omission and second alteration in original) (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947))). Here, however, remand
is unnecessary because, as we discuss below, the BIA denied
Yamoah's application on an alternative, discretionary ground that
we lack jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B)(i).
Where two alternative grounds for a decision exist, and we do not
have jurisdiction to review one, "any opinion of ours reviewing
the nondiscretionary ground could not affect the final order's
validity and so would be advisory only." 4 Zajanckauskas v. Holder,
611 F.3d 87, 90 (1st Cir. 2010) (quoting Ekasinta v. Gonzales, 415
F.3d 1188, 1191 (10th Cir. 2005)). We thus do not review Yamoah's
eligibility claim.
2. The discretionary decision
Yamoah argues that the IJ violated his due process rights
by not giving him an opportunity to address his role in Strother's
welfare fraud, which was referenced as a negative equity in the
decisions of both the IJ and the BIA to deny adjustment as a matter
4 However, where an alternative, nondiscretionary ground forms
the basis for the discretionary judgment, we may review the
nondiscretionary ground. See Restrepo v. Holder, 676 F.3d 10, 16
(1st Cir. 2012); see also Singh v. Gonzales, 468 F.3d 135, 138 (2d
Cir. 2006).

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of discretion. We consider the two discretionary decisions
together. See Restrepo, 676 F.3d at 15.
As stated above, the INA deprives the courts of
jurisdiction to review such discretionary decisions, unless the
challenge to the decision involves claims that either are
constitutional in nature or address questions of law. See 8 U.S.C.
§ 1252(a)(2)(B)(i), (a)(2)(D). Therefore, to complete the
jurisdictional analysis, we must determine whether Yamoah's
challenge falls within this exception.
Yamoah argues that the IJ did not give him an adequate
opportunity to address his role in Strother's welfare fraud. Even
putting aside the invitation, submission, acceptance, and
consideration of a post-hearing statement and three affidavits
from Yamoah and Strother, Yamoah does not explain what efforts he
made to submit any additional evidence or the substance of such
evidence. Yamoah attempts to repackage the weighing of the
equities by the IJ and BIA and the ultimate decision to deny his
adjustment request as a due process violation. But we have
previously held that "cloaking" or "[s]tyling" factual arguments
as constitutional claims does not alone make them so. Ramirez-
Matias v. Holder, 778 F.3d 322, 326 (1st Cir. 2015); Alvarado v.
Holder, 743 F.3d 271, 275 (1st Cir. 2014). Rather, a
constitutional claim must be colorable -- in other words, "at least
potentially valid" -- to confer jurisdiction upon the courts.

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Alvarado, 743 F.3d at 275. Yamoah's claim ultimately takes issue
with the weight assigned by the IJ, and later by the BIA, to
Yamoah's role in Strother's welfare fraud. This claim cannot be
characterized as a colorable constitutional claim and therefore
falls outside of our jurisdiction. 5 See Mele, 798 F.3d at 31–33.
3. The I-601 waiver
Yamoah also asserts that the IJ failed to inform him
that he could file an I-601 waiver application in support of his
adjustment application, and he claims this failure violated his
due process rights. 6 Judicial review of a claim challenging a
final removal order is appropriate only if all administrative
remedies have first been exhausted. 8 U.S.C. § 1252(d)(1); see
also, e.g., Ramirez-Matias, 778 F.3d at 327. Yamoah did not raise
this issue in his appeal to the BIA and thus has not exhausted his
claim. Moreover, no exceptions to the exhaustion requirement apply
to Yamoah's claim of procedural error. See Lima v. Holder, 758
F.3d 72, 81–82 (1st Cir. 2014). As a result, we do not have
5 To the extent that Yamoah also challenges the discretionary
denial on the basis that he provided false testimony, the claim
similarly fails.
6 A Form I-601 is an application to waive a ground of
inadmissibility, such as willful misrepresentation under 8 U.S.C.
§ 1182(a)(6)(C)(i), and thereby re-establish eligibility for a
status adjustment. See U.S. Citizenship & Immig. Servs., U.S.
Dep't of Homeland Sec., OMB No. 1615-0029, Instructions for
Application for Waiver of Grounds of Inadmissibility 1, 11 (May
22, 2015).

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jurisdiction to hear Yamoah's I-601 claim. 7 See Mazariegos-Paiz
v. Holder, 734 F.3d 57, 62 (1st Cir. 2013).
III.
For the foregoing reasons, the petition is dismissed.
7 Even if Yamoah had exhausted his administrative remedies
when raising this challenge, he could not demonstrate the prejudice
he asserts from the IJ's alleged failure to advise him of the I-
601 waiver, because the BIA ultimately rested its denial of his
application for adjustment on discretionary grounds.

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