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Mutie-Timothy v. Lynch

United States Court of Appeals, Eighth Circuit

January 28, 2016

Judith Mutle Mutie-Timothy, Petitioner
v.
Loretta E. Lynch, Attorney General of the United States, Respondent

Submitted October 21, 2015

Petition for Review of an Order of the Board of Immigration Appeals.

For Judith Mutle Mutie-Timothy, Petitioner: Paschal Obinnaya Nwokocha, PASCHAL NWOKOCHA LAW OFFICES, L.L.C., Minneapolis, MN.

For Loretta E. Lynch, Attorney General of the United States, Respondent: Scott Baniecke, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN; Karen Yolanda Drummond, Elizabeth D. Kurlan, Trial Attorney, Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC.

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.

OPINION

Page 1045

WOLLMAN, Circuit Judge.

Judith Mutle Mutie-Timothy, a native and citizen of Kenya, petitions for review of an order of the Board of Immigration Appeals (BIA), upholding the Immigration Judge's (IJ) denial of her applications for adjustment of status and waiver of removal. We dismiss the petition for review insofar as it challenges the BIA's discretionary denial of adjustment of status and waiver of removal, and we otherwise deny the petition.

Mutie-Timothy was admitted to the United States in 1998 as a student. She married a U.S. citizen, Tywan Wortham, in June 2004 and was later granted conditional lawful-permanent-resident status based on that marriage. The U.S. Citizenship and Immigration Services (CIS) terminated Mutie-Timothy's status in May 2007, however, after it determined that she had entered into a fraudulent marriage for the purpose of obtaining immigration benefits. Thereafter, the Department of Homeland Security (DHS) commenced removal proceedings, ultimately charging Mutie-Timothy with removability based on two grounds: (1) termination of her conditional lawful-permanent-resident status, see 8 U.S.C. § § 1227(a)(1)(D)(i), 1186a(b); and (2) marriage fraud, see id. § 1227(a)(1)(G)(ii). Mutie-Timothy denied the allegations.

Page 1046

In the removal proceedings, DHS submitted the report and record prepared by CIS in its investigation into Mutie-Timothy's conditional status. CIS found that Mutie-Timothy provided fraudulent information both in her application for lawful-permanent-resident status and during a July 2005 interview related to that application. It found that Mutie-Timothy falsely claimed to be living with Wortham and working in Kansas from July 2004 to July 2005, when real-estate, employment, tax, and other records established that Mutie-Timothy was then living and working in Minnesota, while Wortham himself lived and worked in Kansas during that time. Although Mutie-Timothy obtained employment in Kansas in July 2005--mere days before her interview with CIS--that employment was terminated for abandonment after less than a week. DHS took the position that Mutie-Timothy had secured the position only to obtain a Kansas employment letter as evidence of her good-faith marriage. In October 2005, Mutie-Timothy and John Nyakundi (a fellow Kenyan national accused of marriage fraud in a separate proceeding) purchased a home in Minnesota, where they lived together. In support of her claim that she had married Wortham in good faith, Mutie-Timothy submitted the results of a DNA paternity test indicating that Wortham was the father of her U.S. citizen daughter. It was Mutie-Timothy herself who collected and identified the DNA samples before mailing them to a lab in New Mexico for testing.

At a removal hearing before the IJ on April 1, 2009, DHS presented the testimony of the CIS officer who had conducted the investigation leading to the termination of Mutie-Timothy's legal status. Mutie-Timothy testified at length in support of her claim that her marriage was not fraudulent. Wortham also testified, but when his testimony began to conflict with Mutie-Timothy's earlier testimony, Mutie-Timothy collapsed and was transported by ambulance to the emergency room, where she was treated for mild dehydration. Although Mutie-Timothy was released later that day, the IJ had continued the proceedings, during which Wortham did not further testify.

Wortham did not attend the removal proceedings when they resumed on April 6, 2009. Mutie-Timothy's counsel stated that there had been an altercation between Wortham and Mutie-Timothy on April 4, 2009, which resulted in a police report and allegations of physical abuse. Mutie-Timothy was recalled to present testimony about the altercation. She testified that Wortham had never struck her before the April 4, 2009, incident. She maintained that he struck her twice on the right side of her face with an open hand and that he attempted to strike her with a closed fist. The police report and criminal complaint, however, stated that Mutie-Timothy had informed officers that Wortham had struck her twice in the mouth with a closed fist. The IJ again continued the proceedings. Before they were resumed, Mutie-Timothy filed a petition with CIS, seeking a determination that she was an abused spouse of a U.S. citizen and was thus eligible to adjust her status to that of a lawful permanent resident under the Violence Against Women Act (VAWA). See 8 U.S.C. § § 1154(a)(1)(A)(iii), 1229b(b)(2)(A). When the proceedings resumed in November, Mutie-Timothy changed her testimony, asserting that Wortham had struck her with a closed fist on more than ten occasions.

Based on the foregoing evidence, the significant inconsistencies between Mutie-Timothy's testimony and the record evidence, and Mutie-Timothy's overall demeanor, the IJ concluded that Mutie-Timothy was not credible and that she was removable on both ...


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