Reynoso v. Holder , 711 F.3d 199 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2136
BELTSY REYNOSO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Ripple* and Howard,
Circuit Judges.
Ondine G. Sniffin on brief for petitioner.
Jesse Lloyd Busen, Trial Attorney, United States Department of
Justice, Office of Immigration Litigation, Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, and Erica B. Miles,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
March 26, 2013
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Beltsy Reynoso, a native and
citizen of the Dominican Republic, was granted conditional
permanent residency in the United States in 2002 on the basis of
her marriage to a United States citizen. Sometime following that
grant, Ms. Reynoso and her husband began divorce proceedings. When
she later sought to remove the conditions on her residency, she
filed her application without her husband co-signing the relevant
form. Although his signature would have been necessary in the
ordinary course, Ms. Reynoso sought to employ an alternate method
in which she was required to prove that the marriage, although now
ended, had been bona fide. The Department of Homeland Security
(“Department” or “DHS”)1 denied her petition upon concluding that
she had not carried her burden of establishing that she had entered
her marriage for reasons other than obtaining immigration status in
the United States. It therefore terminated her conditional
resident status and initiated removal proceedings against her.
In removal proceedings, Ms. Reynoso renewed her request
to remove the conditions on her residency and also sought
cancellation of removal. The immigration judge (“IJ”) found that
Ms. Reynoso had not established that she had entered her marriage
in good faith and denied the request for removal of conditions.
1
For ease of reading, we use the terms “Department” or “DHS”
as inclusive of its predecessor entities, including the Immigration
and Naturalization Service, as well as its current subdivisions,
including the United States Citizenship and Immigration Services.
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The IJ further determined that Ms. Reynoso was ineligible for
cancellation of removal because she had given false testimony in
the proceedings and therefore could not establish the requisite
good moral character. Consequently, the IJ ordered Ms. Reynoso’s
removal, and the Board of Immigration Appeals (“BIA” or “Board”)
dismissed her appeal.2 Ms. Reynoso now petitions this court for
review of the decision of the Board.3 Because the administrative
record does not require the conclusion that Ms. Reynoso entered her
marriage in good faith and because the Board did not commit legal
error in denying her request for cancellation of removal, we deny
the petition for review.
I
BACKGROUND
A. Facts
Ms. Reynoso married Lemuel Martínez on January 20, 2001.
On March 7, 2001, Martínez filed a Form I-130 petition on
Ms. Reynoso’s behalf based on their marriage, and the Department
approved the petition in July 2001. Ms. Reynoso subsequently
filed an application to adjust her status to that of a permanent
2
The Board had jurisdiction pursuant to 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15.
3
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We
review Ms. Reynoso’s cancellation claim because she has raised a
question of law. See 8 U.S.C. § 1252(a)(2)(D).
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resident, which the Department approved on February 4, 2002.
Because Ms. Reynoso’s marriage was less than twenty-four months old
on the date on which her residency application was approved, the
approval was conditional.4
In November 2003, Ms. Reynoso submitted her first
petition to remove the conditions on her permanent residency and
requested that the Department waive the requirement that her
husband co-sign the petition (“the joint filing requirement”);5 she
sought the waiver on the ground that she and Martínez had begun
divorce proceedings.6 DHS denied the waiver petition in August
2004 because Ms. Reynoso had failed to provide sufficient
documentary evidence of her marital relationship. In September
4
See id. § 1186a(a)(1), (h)(1). “Conditional” permanent
residency refers to the initial residency grant in an adjustment
case based on a marriage less than two years old at the time the
application for adjustment is granted. Conditional residents enjoy
the benefits of residency, but must apply for removal of the
“conditions” after two years. That is, in this class of cases, the
law requires a second petition through which DHS has an opportunity
to reevaluate the bona fides of the underlying marriage. Further,
during the term that residency is “conditional,” the alien is
subject to particular rules for revocation if the agency determines
that the underlying marriage is “improper.” See id. § 1186a(b).
In any event, at the conclusion of the two-year conditional
residency period, the status expires. If the alien has failed to
timely petition to remove the conditions, or if a petition is
unsuccessful--perhaps because the agency now deems the marriage not
bona fide--conditional resident status is simply terminated and, as
occurred here, removal proceedings are initiated. If the alien
successfully petitions for removal of the conditions, he becomes
simply a permanent resident. See generally id. § 1186a(c).
5
See id. § 1186a(c)(1)(A).
6
The divorce was finalized in January 2005.
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2004, Ms. Reynoso filed a second petition, which was denied in
March 2005, because her divorce had not been finalized at the time
that she filed her petition.7
Ms. Reynoso filed a third petition requesting a waiver of
the joint filing requirement in April 2005, and she was interviewed
in connection with that petition in October 2006. In that
interview, Ms. Reynoso stated, consistent with a written statement
that she had provided in connection with the petition, that she had
married Martínez in good faith on January 20, 2001, and that the
couple had separated in October 2002. She also stated that she
gave birth to a child in August 2003, while the couple was still
married but separated, and that Martínez was not the child’s
father.
In support of her claim that the marriage to Martínez had
been entered in good faith, Ms. Reynoso submitted the following
documentation: a letter from a bank dated September 10, 2004,
indicating that she and Martínez had held a joint account since
October 27, 2001; a copy of a life insurance enrollment form dated
January 25, 2002, which listed Martínez as the beneficiary of
Ms. Reynoso’s life insurance policy; and copies of Ms. Reynoso’s
7
The waiver for which Ms. Reynoso applied refers to a
marriage which “has been terminated.” 8 U.S.C. § 1186a(c)(4)(B).
-5-
2002 tax returns, which were filed as “married filing separately.”8
While her third waiver petition was pending, Ms. Reynoso remarried.
DHS denied the third waiver petition and issued a notice
of termination of conditional resident status on February 4, 2009.
The denial letter cited a “lack of convincing documentary evidence”
that the marriage was bona fide, i.e., that it “was not entered
into for the sole purpose of procuring [her] admission as an
immigrant.”9 DHS then placed her in removal proceedings because
her conditional resident status had been terminated and she had no
continuing authorization to remain in the United States. See 8
U.S.C. § 1227(a)(1)(D)(i). Before the IJ, Ms. Reynoso pursued her
petition for removal of the conditions on her residency and also
filed an application for cancellation of removal. See id.§§ 1186a(b)(2), 1229b(b)(1). On March 10, 2010, while her removal
proceedings were pending, Ms. Reynoso’s second husband filed a visa
petition on her behalf with DHS.10
B. Administrative Proceedings
On July 29, 2010, an IJ held a merits hearing on
Ms. Reynoso’s petition to remove the conditions on her residency
8
A.R. 225, 227.
9
Id. at 199.
10
The merits of this petition are not at issue in the current
proceedings, and the record does not disclose its current status.
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and her cancellation of removal application. In addition to the
evidence submitted with her petition at the administrative level,
Ms. Reynoso offered her own new statement as well as several
letters, including one indicating an attempt to contact her former
husband
Ms. Reynoso was the only witness to testify at the
hearing. She testified that she had dated her first husband for
approximately one year before they married on January 20, 2001.
According to Ms. Reynoso, the “marriage functioned very well” in
the beginning, but, over time, her husband “bec[ame] very
distant.”11 It ended after an argument in which Martínez confessed
to Ms. Reynoso that he was attracted to men. She also testified
that, once she had been placed in removal proceedings, she located
Martínez and he pledged to assist her.
On cross-examination, Ms. Reynoso indicated that she and
Martínez separated during the summer of 2002. Ms. Reynoso admitted
that, when she filed her first petition to waive the conditions in
November 2003, the letter she wrote accompanying the petition
indicated that she and her husband had separated in October 2002.12
Ms. Reynoso then testified that she left the marital home in April,
11
A.R. 91-92.
12
See id. at 216. Not only did she identify October 2002 as
the operative date in her November 2003 letter, she reiterated the
same date in a statement submitted in connection with her removal
proceedings in 2010. See id. at 137.
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May or the summer of 2002. When confronted with these
discrepancies, her testimony became confused. She stated that she
knew “what [she] put” in her previous statements and she was “aware
of the dates” to which she was currently testifying.13 She said
that she had copies of her prior statements and had reviewed them.
She attempted to reconcile the inconsistencies by stating that
October 2002 was an “approximate” time, and she provided that date
only to establish during “which part of the year . . . this
happened.”14 She later stated that the couple separated in August
or October 2002 and that her previous statement that he had left in
October provided only a “month of reference.”15
Ms. Reynoso also gave somewhat confusing testimony about
her prior addresses. She testified that she and Martínez had lived
on Hampshire Street in Lawrence, Massachusetts. She indicated that
they had begun living at that address in the summer of 2000, six or
eight months or possibly a year before they were married.16
Ms. Reynoso claimed that they had resided in the same house for
approximately one year and that she had left the marital home a few
weeks after she and Martínez had separated. Although she claimed
that she had met Martínez in 1999 and that they had begun dating in
13
Id. at 100.
14
Id. at 102.
15
Id. at 113.
16
Id. at 103.
-8-
2000, she could not recall how long Martínez had lived on Hampshire
Street before they had started cohabitating, nor could she recall
if he had lived somewhere else before the time that they started
dating.
Ms. Reynoso also testified that she had lived and worked
in New York City, not Lawrence, prior to moving in with Martínez.
When asked whether she ever had lived on Bunker Hill in Lawrence,
she responded that she had stayed at that address when she visited
a friend named Luisa Castillo. When asked why she previously had
indicated to DHS that she lived at that address from September 1994
to March 2000, she stated that she had provided that address in
response to a question about her address when she moved to
Lawrence, and she had not lived there in 1994.17
On July 29, 2010, the IJ issued an oral decision finding
Ms. Reynoso removable as charged, denying her request for waiver of
the joint filing requirement and denying her application for
cancellation of removal. The IJ stated that, on the subject of her
employment and residence history, Ms. Reynoso’s testimony was “at
great variance from information that she provided previously to the
Government in connection with her application for adjustment of
status.”18 In reaching that conclusion, the IJ reviewed each item
of evidence that Ms. Reynoso had submitted before the agency and
17
Id. at 115-16.
18
Id. at 62-63.
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before the immigration court in support of her petition, along with
her testimony, and noted numerous discrepancies: the dates on
which she had lived in Massachusetts, where in Massachusetts she
had lived, when she met Martínez, where he lived, how long she had
lived with Martínez, and when each spouse had left the marital
home. The IJ also observed that, although Ms. Reynoso had provided
a letter showing that they had lived on Hampshire Street during the
time that they were married, it did not indicate how long the
couple lived there, and there were no contemporaneous documents
evidencing their cohabitation. The other documentary evidence was
limited, and, in the IJ’s view, problematic: There was no proof
that the life insurance policy for Ms. Reynoso listing Martínez as
the beneficiary ever had been issued, and the bank statement was
dated well after their separation and listed a different address
for the couple. Although the IJ took note of an affidavit from a
friend who was present at the wedding, the IJ also observed that
Ms. Reynoso had not come forward with any affidavits from friends,
family or acquaintances concerning “the nature of the [couple’s]
relationship [or] the reason that the relationship ended.”19 The
IJ therefore concluded that Ms. Reynoso had not met her burden of
establishing that her marriage to Martínez was entered in good
faith.
19
Id. at 67.
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The IJ further concluded that, because Ms. Reynoso gave
false information to immigration authorities and to the immigration
court, she could not establish good moral character for purposes of
cancellation of removal. Finally, given that the IJ believed that
Ms. Reynoso “ha[d] previously engaged in a sham marriage for
purposes of obtaining [i]mmigration benefits,” she denied as a
matter of discretion Ms. Reynoso’s alternate request for a
continuance to await disposition of the new visa petition filed on
her behalf by her second husband.20
The BIA affirmed the IJ’s decision. The BIA pointed to
the inconsistencies in Ms. Reynoso’s testimony and the lack of
documentation of a shared marital life as grounds for concluding
that she had not established that she had entered her first
marriage in good faith. Similarly, the BIA determined that the IJ
had not erred in denying Ms. Reynoso’s application for cancellation
of removal on the ground that she was statutorily ineligible to
apply for such relief given her lack of good moral character. The
Board again noted the false information that Ms. Reynoso had
provided in her immigration proceedings as the basis for its
finding.
Ms. Reynoso timely sought review in this court.
20
Id. at 67-68. The IJ noted that it was the “Court’s
estimation” that Ms. Reynoso had entered into a sham marriage, but
acknowledged that there had been no formal determination of that
fact. Id.-11-
II
DISCUSSION
A. Removal of Conditions on Residency and the Good Faith Marriage
Requirement
1. Standard of Review
We review for substantial evidence the agency’s
determination that Ms. Reynoso did not establish that she entered
into her marriage to Martínez in good faith. See Cho v. Gonzáles,
404 F.3d 96, 102 (1st Cir. 2005). Under the substantial evidence
standard, the decision of the Board “must be upheld if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elías-Zacarías, 502 U.S. 478, 481
(1992) (internal quotation marks omitted). Reversal is appropriate
only where “a reasonable factfinder would have to” reach a contrary
conclusion. Id. Here, the Board issued its own decision on these
issues, and it is the final agency decision under review. See
Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir. 2008).21
21
The Government contends that we should review the decision
of the Board and the IJ together, citing Settenda v. Ashcroft, 377
F.3d 89, 92-93 (1st Cir. 2004). See Gov’t Br. 16. Settenda
instructs us to review both decisions “[w]hen the BIA does not
render its own opinion[] . . . and either defers [to] or adopts the
opinion of the IJ.” Settenda, 377 F.3d at 93 (fourth alteration in
original) (internal quotation marks omitted). That is not an apt
description of the record in this case. The BIA rendered its own
decision. It affirmed, but did not adopt, the decision of the IJ.
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2. Removal of Conditions on Residency, Section 1186a
Section 1186a of Title 8 of the United States Code
governs the processes for obtaining conditional resident status,
removing the conditions on residency and related matters.
Generally speaking, the statute directs that aliens who were
eligible to receive permanent residency upon a spouse’s successful
petition are in that status conditionally for a period of two
years. Before the expiration of those two years, conditional
permanent residents are directed to submit, jointly with their
petitioning spouse, a new petition to remove the conditions on
their residency and to appear together for a joint interview on the
petition. 8 U.S.C. § 1186a(c)(1). However, the statute allows the
alien spouse to request a waiver of the joint filing requirement in
limited circumstances: if removal would lead to extreme hardship,
if the alien spouse has been battered or subjected to extreme
cruelty by the petitioning spouse, or, as relevant here, if “the
qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated.” Id.
§ 1186a(c)(4). The accompanying regulations provide instructive
guidance regarding how an alien might carry the burden of
establishing that a marriage was entered into in good faith.
Specifically, the regulations identify the relevant inquiry as “the
amount of commitment by both parties to the marital relationship.”
8 C.F.R. § 1216.5(e)(2). Evidence of that commitment might include
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“[d]ocumentation relating to the degree to which the financial
assets and liabilities of the parties were combined[]” or
“[d]ocumentation concerning the length of time during which the
parties cohabited after the marriage and after the alien obtained
permanent residence[,]” in addition to evidence of any children
born of the marriage. Id.22 It bears repeating that “[t]he alien
has the burden of proof on this issue. To carry this burden, [s]he
must show that, at the time that the newlyweds plighted their
troth, [s]he intended to establish a life with h[er] spouse.”
22
The regulations also refer to “[o]ther evidence deemed
pertinent by” the relevant authorities. 8 C.F.R.
§ 1216.5(e)(2)(iv). In the instructions to the petition itself,
the Department has identified a list of other such pertinent
evidence, including: “[l]ease or mortgage contracts showing joint
occupancy and/or ownership of your communal residence[,]”
“[f]inancial records showing joint ownership of assets and joint
responsibility for liabilities, such as joint savings and checking
accounts, joint federal and state tax returns, insurance policies
that show the other spouse as the beneficiary, joint utility bills,
joint installments, or other loans[,]” along with third-party
affidavits and other evidence that the alien “consider[s] relevant
to establish that your marriage was not entered into in order to
evade the U.S. immigration laws.” Form I-751 Instructions (Rev.
0 1 / 1 2 / 1 1 ) a t 2 , a v a i l a b l e a t
http://www.uscis.gov/files/form/i-751instr.pdf. The courts of
appeals have acknowledged that the range of potentially relevant
evidence is broad. See Agyeman v. INS, 296 F.3d 871, 882-83 (9th
Cir. 2002) (“Evidence of the marriage’s bona fides may include:
jointly-filed tax returns; shared bank accounts or credit cards;
insurance policies covering both spouses; property leases or
mortgages in both names; documents reflecting joint ownership of a
car or other property; medical records showing the other spouse as
the person to contact; telephone bills showing frequent
communication between the spouses; and testimony or other evidence
regarding the couple’s courtship, wedding ceremony, honeymoon,
correspondences, and shared experiences.”).
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McKenzie-Francisco v. Holder, 662 F.3d 584, 587 (1st Cir. 2011)
(citations omitted).
3. Substantial Evidence Supports the Board’s Conclusion
Ms. Reynoso’s evidence in support of the bona fides of
her marriage was as follows: her personal statement, a designation
of beneficiary form for a life insurance policy through her
employer on which she had handwritten Martínez’s name, a letter
from the couple’s landlady in 2001 stating only the fact of their
apartment rental, a letter from a bank from after the couple’s
separation that listed both names but included an address that was
not the couple’s alleged shared residence, a receipt issued to
Martínez for the purchase of wedding rings and three statements by
individuals who attested that they knew the couple.23 The record
discloses the birth of a child to Ms. Reynoso prior to her divorce
from Martínez, but it is undisputed that the child was not born “to
the marriage.” See 8 C.F.R. § 1216.5(e)(2)(iii).
This limited record certainly cannot be said to require
the conclusion that Ms. Reynoso’s marriage to Martínez was bona
fide. Indeed, Ms. Reynoso has failed to submit any contemporaneous
records evidencing commingling of assets and liabilities, and the
documentary evidence of cohabitation is limited to the landlady’s
23
The letters range in length from two sentences to five
sentences and provide virtually no detail about the couple or their
relationship. See A.R. 141-43.
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statement, which provides no detail whatsoever. Nor can it be said
that Ms. Reynoso’s statement or testimony necessarily overcomes the
weaknesses in the documentary evidence, given that, on details both
large and small--the length of the couple’s cohabitation or the
residences of the couple during the period in which they were
dating--her oral and written statements contain numerous
inconsistencies. Before this court, Ms. Reynoso cites no precedent
for her assertion that the Board’s decision is not supported by
substantial evidence.24
24
Indeed, our study of the cases suggests that the record
before us more closely mirrors cases in which the agency’s
determination of lack of bona fides has been upheld as opposed to
cases in which that determination has been overturned. Compare
McKenzie-Francisco v. Holder, 662 F.3d 584, 587 (1st Cir. 2011)
(holding that the IJ’s conclusion that a marriage was not entered
in good faith was supported by substantial evidence because, in
addition to the petitioner’s credibility problems, the record
“lack[ed] the type of memorabilia that marriages typically
produce”), Yohannes v. Holder, 585 F.3d 402, 404-06 (8th Cir. 2009)
(holding that substantial evidence supported the Board’s decision
where the alien’s testimony regarding details of the marriage was
inconsistent, and the documentary record was limited to joint tax
returns and a brief, undated affidavit from the citizen spouse),
and Oropeza-Wong v. Gonzáles, 406 F.3d 1135, 1148-49 (9th Cir.
2005) (holding that substantial evidence supported determination
that the marriage was not entered into in good faith where there
was “little corroborative evidence” of the alien’s testimony and
there were problems with the documents, including that there was no
proof that “life insurance and . . . automobile title” documents
ever had been filed), with Cho v. Gonzáles, 404 F.3d 96, 103-04
(1st Cir. 2005) (holding that the record compelled the conclusion
that a marriage was bona fide where husband and wife engaged in
lengthy courtship, cohabitated, enrolled jointly in health
insurance policy, opened joint bank accounts, filed joint tax
returns, entered auto financing agreements, opened joint credit
card and otherwise suspicious timing of separation immediately
following immigration interview was explained by alien’s revelation
of abuse by spouse).
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Throughout the proceedings, Ms. Reynoso has attempted to
explain the inconsistencies in her testimony as the result of the
passage of time. Although time certainly may cloud memories, her
explanation is not so compelling that the factfinder was required
to credit it, and with it, her account of her marriage. See
Yohannes v. Holder, 585 F.3d 402, 406 (8th Cir. 2009) (rejecting a
similar contention based on a fourteen-year lapse of time and
noting that the alien “bears the burden of proof, and the
regulations make no special provisions for an individual seeking a
waiver many years after the events that gave rise to his
petition”). Further, it is worth noting that, although her removal
hearing occurred in 2010, some eight years after the separation,
Ms. Reynoso began waiver proceedings in 2003, roughly one year
after the couple’s separation; at least one of the statements about
which she was questioned was submitted with the original petition
in 2003.25
Ms. Reynoso also contends that the IJ’s statement that
she would not make a finding of a “sham marriage” was inconsistent
with the conclusion that Ms. Reynoso had not established that her
marriage was bona fide. She asks us to remand because the
inconsistency makes the decision “arbitrary and capricious.”26
There are two significant difficulties with this argument.
25
See A.R. 216.
26
Pet’r’s Br. 3.
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First, we are concerned with the final decision of the
agency, here, the decision of the BIA. The Board did not adopt
this portion of the IJ’s opinion, or any other; instead, it
specifically stated that it had reviewed “whether the parties have
met the relevant burden of proof[] . . . under a de novo standard.”
A.R. 3; see also Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir. 2008)
(noting that, where the BIA does not adopt the IJ’s opinion, we
review the ruling of the BIA standing alone). The Board itself
made no similar comment regarding whether a specific finding of a
“sham marriage” was warranted on the evidence, instead holding only
that Ms. Reynoso had failed to carry her burden of proof.
Second, Ms. Reynoso’s argument turns on her
interpretation of the statute dealing with sham marriage
determinations, 8 U.S.C. § 1154(c).27 This provision, however, has
a single directive: It prohibits issuance of a visa to an
individual if the Attorney General determines that the individual
27
Section 1154(c) of Title 8 provides:
Notwithstanding the provisions of subsection (b) of
this section no petition shall be approved if (1) the
alien has previously been accorded, or has sought to be
accorded, an immediate relative or preference status as
the spouse of a citizen of the United States or the
spouse of an alien lawfully admitted for permanent
residence, by reason of a marriage determined by the
Attorney General to have been entered into for the
purpose of evading the immigration laws, or (2) the
Attorney General has determined that the alien has
attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws.
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ever had sought status on the basis of a sham marriage. See 8
U.S.C. § 1154(c). Here, neither the IJ nor the BIA was
adjudicating a new visa petition for Ms. Reynoso. Instead, they
were charged with making a determination about permanent resident
status based on a visa petition that already had been granted years
ago by the Department, the validity of which was not in question in
the removal proceedings. Ms. Reynoso did have a second such visa
petition pending at the time of her removal proceedings, filed by
her second husband, but the contemporaneous review of that petition
by the Department was an entirely separate administrative
proceeding. See Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.
1990); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987)
(noting that “[t]he proceedings in which visa petitions are
adjudicated are separate and apart from exclusion and deportation
proceedings” and that, consequently, “it is well established that
immigration judges have no jurisdiction to decide visa petitions,
a matter which is solely within the authority of the district
director”).28 Section 1154(c), therefore, had no application to
these proceedings, and the IJ’s failure to cite it, or render a
decision under it, in no way conflicts with the entirely separate
28
It is clear on the face of the record that the IJ
understood the distinction. Upon noting that no sham marriage
determination had been made under the relevant section, the IJ
continued that Ms. Reynoso did “not appear to be barred . . . from
a new visa petition submitted by her current husband.” A.R. 14
(emphasis added).
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determination that Ms. Reynoso had failed to establish the bona
fides of her first marriage in her removal proceedings.29
The Board’s decision to deny removal of the conditions on
Ms. Reynoso’s residency, is, therefore, supported by substantial
evidence, and we shall not disturb it.
B. Cancellation of Removal
1. Standard of Review
In order to demonstrate eligibility for cancellation of
removal without the benefit of permanent resident status, an alien
must establish various things: physical presence in the United
States over a relevant period, absence of certain offenses in any
criminal history, extreme hardship to a qualifying relative in the
event of removal and good moral character for the ten years
preceding the application. 8 U.S.C. § 1229b(b)(1). The IJ
concluded that Ms. Reynoso was barred from establishing the
29
Furthermore, the context of the IJ’s statement provides
even greater clarity about the matter. The IJ made this remark in
the portion of her opinion regarding Ms. Reynoso’s request to
continue the removal proceedings to allow the Department to
adjudicate her second visa petition. If granted, that petition by
her current spouse could have provided an alternate basis for a
grant of permanent resident status.
The IJ refused the requested continuance, citing her own
conclusion that the first marriage had not been bona fide as the
reason that she would not exercise her discretion in favor of
Ms. Reynoso on this matter. It should be noted that this decision
of the IJ to deny the continuance--the only portion of the opinion
in which the sham marriage discussion appears--is not challenged in
this petition for review.
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requisite good moral character because she had “given false
testimony for the purpose of obtaining any benefits under this
chapter,” 8 U.S.C. § 1101(f)(6),30 and the Board affirmed.
30
Section 1101(f) of Title 8 reads in its entirety:
(f) For the purposes of this chapter--
No person shall be regarded as, or found to be, a person
of good moral character who, during the period for which
good moral character is required to be established, is,
or was--
(1) a habitual drunkard;
(2) Repealed. Pub.L. 97-116, § 2(c)(1), Dec. 29,
1981, 95 Stat. 1611.
(3) a member of one or more of the classes of
persons, whether inadmissible or not, described in
[various paragraphs of section 1182 not
applicable];
(4) one whose income is derived principally from
illegal gambling activities;
(5) one who has been convicted of two or more
gambling offenses committed during such period;
(6) one who has given false testimony for the
purpose of obtaining any benefits under this
chapter;
(7) one who during such period has been confined,
as a result of conviction, to a penal institution
for an aggregate period of one hundred and eighty
days or more, regardless of whether the offense, or
offenses, for which he has been confined were
committed within or without such period;
(8) one who at any time has been convicted of an
aggravated felony (as defined in subsection (a)(43)
of this section); or
(9) one who at any time has engaged in conduct
described in section 1182(a)(3)(E) of this title
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Ms. Reynoso contends that the Board’s conclusion on this matter was
erroneous and asks us to remand the case for full consideration of
all of the elements of her cancellation claim.
As a threshold matter, we must determine the availability
and scope of our review over such a conclusion. Our cases have not
always been consistent or clear with respect to setting forth the
applicable standards under these circumstances, although we believe
they routinely have outlined, in their methodology, the appropriate
course. Compare Opere v. U.S. INS, 267 F.3d 10, 13 (1st Cir. 2001)
(referring to a determination under § 1101(f) as “a
non-discretionary question of fact [that] we review . . . for
(relating to assistance in Nazi persecution,
participation in genocide, or commission of acts of
torture or extrajudicial killings) or 1182(a)(2)(G)
of this title (relating to severe violations of
religious freedom).
The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for
other reasons such person is or was not of good moral
character. In the case of an alien who makes a false
statement or claim of citizenship, or who registers to
vote or votes in a Federal, State, or local election
(including an initiative, recall, or referendum) in
violation of a lawful restriction of such registration or
voting to citizens, if each natural parent of the alien
(or, in the case of an adopted alien, each adoptive
parent of the alien) is or was a citizen (whether by
birth or naturalization), the alien permanently resided
in the United States prior to attaining the age of 16,
and the alien reasonably believed at the time of such
statement, claim, or violation that he or she was a
citizen, no finding that the alien is, or was, not of
good moral character may be made based on it.
8 U.S.C. § 1101(f) (footnote omitted).
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substantial evidence” (emphasis added)) with Toribio-Chávez v.
Holder, 611 F.3d 57, 64-65 (1st Cir. 2010) (identifying the
petitioner’s argument that he had not provided false testimony for
purposes of § 1101(f) as raising a “question of law” and proceeding
to engage in substantial evidence review). We now pause to make
explicit what our prior cases, read together, have suggested.
As we made clear in our most recent case addressing the
matter in some detail, Restrepo v. Holder, 676 F.3d 10 (1st Cir.
2012), our starting point is the statutory text. Our review of
cancellation is circumscribed by the interplay of two provisions of
the governing statute: first, the jurisdiction-stripping provision
of § 1252(a)(2)(B)(i) and, second, the savings clause of
§ 1252(a)(2)(D):
The regime that Congress has set in place narrowly
defines our authority to review a petition [of a
cancellation decision]. The provision codified at 8
U.S.C. § 1252 divests federal courts of jurisdiction to
review any judgment regarding the granting of relief
relative to cancellation of removal. The statute thereby
leaves the matter of whether an alien should receive such
relief to the Attorney General’s discretion and precludes
our review in the absence of a colorable constitutional
claim or question of law.
Restrepo, 676 F.3d at 15 (citation omitted) (internal quotation
marks omitted).
As Restrepo further notes, good moral character
determinations come in two varieties: those that are mandated by
the statute, because the IJ has made a finding that the alien has
satisfied one of the provisions of § 1101(f), and those that are
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purely discretionary, i.e., those made for any reason
not specifically identified in the statute. See id. at 15.
The latter type of determination is removed from our
review by § 1252(a)(2)(B)(i). Any challenge to a discretionary
determination that an applicant lacks good moral character is
simply a challenge to a “judgment regarding the granting of”
cancellation of removal, over which the statute dictates we have no
authority. However, because the statute requires a determination
that an applicant lacks good moral character when the IJ finds the
alien to have satisfied any of the provisions of § 1101(f),
challenges to the applicability of this section are, by their very
nature, “questions of law,” over which § 1252 preserves our
jurisdiction. 8 U.S.C. § 1252(a)(2)(D). Whether our cases have
used the “question of law” moniker is of little import; it is clear
that the non-discretionary, legal nature of the determination at
issue has preserved our jurisdiction. Compare Restrepo, 676 F.3d
at 16 (calling a determination under § 1101(f) a “non-discretionary
ground for denial that is within the scope of our jurisdiction”),
with Toribio-Chávez, 611 F.3d at 64 (calling the same issue a
reviewable “question of law”). As with all questions of law
arising in our review of Board decisions, our review of the
applicability of the statute to the facts as found is de novo.
Toribio-Chávez, 611 F.3d at 62 (“We review the BIA’s legal
conclusions de novo, with appropriate deference to the agency’s
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interpretation of the underlying statute in accordance with
administrative law principles.”).
Therefore, in a challenge such as the one presented here,
the question regarding the applicability of the statute is, in
essence, a challenge to the embedded factual finding that an alien
has satisfied one of the statute’s provisions, such as the finding
that the alien “has given false testimony.” See 8 U.S.C.
§ 1101(f)(6). That the alien indeed has satisfied one of these
provisions is a necessary piece of the legal inquiry, but is itself
a factual finding. Like all factual findings, we review the
finding that an alien has committed the requisite act (here, for
example, of providing false testimony), for substantial evidence--
and our cases, regardless of the way they have phrased the inquiry,
indeed have engaged in this manner of review of § 1101(f)
determinations. See Restrepo, 676 F.3d at 16; Toribio-Chávez, 611
F.3d at 65; Opere, 267 F.3d at 13.
We have before us a determination that an alien lacked
good moral character based on the mandatory provisions of
§ 1101(f). Following the course our cases have outlined, we are
presented with a legal question about the applicability of the
statute that we review de novo. The critical finding, and, indeed,
the real substance of our inquiry, is the finding that the alien
gave false testimony. We review this question for substantial
evidence and will reverse only where, on review of the record, “a
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reasonable factfinder would have to” reach a contrary conclusion.
Elías-Zacarías, 502 U.S. at 481.31
2. The Board’s Decision to Deny Cancellation
For purposes of § 1101(f)(6), “false testimony ‘is
limited to oral statements made under oath’ and, specifically,
‘only to those misrepresentations made with the subjective intent
of obtaining immigration benefits.’” Restrepo, 676 F.3d at 16
(quoting Kungys v. United States, 485 U.S. 759, 780 (1988)).
Ms. Reynoso objects that, in finding that she had given false
testimony, the IJ did not cite any specific misstatements in oral
testimony and instead relied on inconsistencies between prior
written statements and her in-court testimony.
Ms. Reynoso misreads the oral ruling of the IJ and the
decision of the Board. In the oral ruling, the IJ specifically
31
Ms. Reynoso never has raised a challenge to whether the
statements identified as false by the IJ and accepted by the Board
were made during the period for which good moral character must be
established according to the statute. Specifically, she never has
challenged the correctness of the Board’s decision in In re
Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005). We therefore have
no occasion to express an opinion about the merits of such a
challenge. See Duron-Ortiz v. Holder, 698 F.3d 523, 527-28 (7th
Cir. 2012) (upholding the Board’s decision in Ortega-Cabrera); cf.
Cuadra v. Gonzáles, 417 F.3d 947, 951-52 (8th Cir. 2005) (holding
that the prior statutory scheme limited the period for which good
moral character had to be shown to the period before the filing of
the application, but not confronting the statutory amendments by
the stop-time rule and the Board’s subsequent decision in
Ortega-Cabrera).
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stated that Ms. Reynoso could not “establish[] . . . prima facie
eligibility for cancellation of removal because she has provided
false information both to the Immigration authorities and to this
Court.”32 The Board’s opinion cites instances in which, before the
immigration court itself, Ms. Reynoso gave inconsistent testimony,
including Ms. Reynoso’s multiple in-court answers to questions
about how long she and Martínez lived together; at various points
in her testimony she indicated that the duration of their
relationship was one year or two-and-one-half years, and she also
gave many different answers to the question of when they had
stopped living together: April, May, June, August and October of
2002. The fact that Ms. Reynoso gave directly inconsistent answers
on the stand is substantial evidence in support of the Board’s
conclusion that she falsely testified to the immigration court.33
32
A.R. 14.
33
Ms. Reynoso objects that the IJ’s oral decision also made
mention of numerous inconsistencies between the in-court statements
and prior statements included in the record on forms and in
connection with immigration interviews. Although these latter
inconsistencies could form the basis for a determination that she
had given false testimony if they were confirmed orally and under
oath, see In re R-S-J-, 22 I. & N. Dec. 863, 865-66 (BIA 1999), the
record before us is not sufficient to conclude that an oath was
administered when the earlier out-of-court statements were made,
cf. id. at 864. In assessing the decision of the Board, we have
not relied on these additional inconsistencies identified by the
IJ.
Further, we already have rejected Ms. Reynoso’s alternative
explanation that the passage of time made it difficult for her to
remember. See supra Part I.A.3. Although that is a plausible
explanation for her inconsistent responses on the stand, the agency
was not required by the record before it to accept that
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We have little difficulty in concluding that such factual
misstatements to the immigration court do constitute false
testimony for purposes of § 1101(f)(6), as this court and others
repeatedly have held. See, e.g., Restrepo, 676 F.3d at 16. Any
falsehood made with the subjective intent of obtaining an
immigration benefit, even one seemingly immaterial to the inquiry
at hand, undermines the applicant’s good moral character and
therefore can be the subject of a § 1101(f)(6) determination.
Section 1101(f)(6) “imposes no materiality requirement. Rather,
the provision ‘denominates a person to be of bad moral character on
account of having told even the most immaterial of lies with the
subjective intent of obtaining immigration or naturalization
benefits.’” Opere, 267 F.3d at 14 (citation omitted) (quoting
Kungys, 485 U.S. at 780); see also Gonzalez v. Sec’y of Dep’t of
Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). In the present
case, Ms. Reynoso was unable to identify with any precision
whatsoever--and indeed gave conflicting testimony regarding--how
long she and her former spouse had cohabited and related details.
Given that the validity of this marriage was the primary issue to
be decided in her proceedings and that the length of cohabitation
is identified directly by the regulations as part of the relevant
inquiry, see 8 C.F.R. § 1216.5(e)(2), the Board’s decision on this
matter is supported by substantial evidence. Cf.
explanation.
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Gonzalez-Maldonado v. Gonzáles, 487 F.3d 975, 978-79 (5th Cir.
2007) (reversing a decision that the alien had given false
testimony under § 1101(f) for having listed his attorney’s address
as his own, because it could not be said that the provision of a
false address was made to “influence [a] favorable outcome” of the
proceedings).
Ms. Reynoso’s final contention is that the IJ’s
conclusion was essentially a credibility finding, and “[a] finding
that testimony lacked credibility does not alone justify the
conclusion that false testimony has been given.”
Rodríguez-Gutiérrez v. INS, 59 F.3d 504, 507 (5th Cir. 1995).
Rodríguez-Gutiérrez, however, has no application to the present
situation. In that case, the IJ had found that the petitioner had
not testified credibly, but also had found that he had good moral
character. The BIA determined that “the IJ’s determination that
Rodríguez’s testimony lacked credibility was tantamount to a
finding that Rodríguez was not a person of good moral character
because he gave false testimony at the hearing.” Id. The Fifth
Circuit rejected the BIA’s conclusion. See id. at 508. Here, by
contrast, there was an explicit finding by the IJ that the
testimony that Ms. Reynoso provided to the court was “false.”34
Because that determination, affirmed by the Board, is supported by
substantial evidence, Ms. Reynoso’s argument must fail.
34
A.R. 14.
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Conclusion
The conclusion of the Board that Ms. Reynoso did not
carry her burden of establishing that she had married her first
husband in good faith is supported by substantial evidence.
Accordingly, the agency’s decision denying her petition to remove
the conditions on her residency must stand. Further, we perceive
no legal error in the Board’s conclusion that Ms. Reynoso is
subject to a mandatory bar to a finding of good moral character on
the basis of false testimony in her immigration proceedings.
Therefore, the agency did not err in denying her application for
cancellation of removal.
PETITION DENIED.
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