Wen Yuan Chan v. Lynch , 843 F.3d 539 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-2112
    WEN YUAN CHAN,
    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
    Barron, Selya and Stahl,
    Circuit Judges.
    Gregory Romanovsky, with whom Romanovsky Law Offices was on
    brief, for petitioner.
    Robert Michael Stalzer, Attorney, Office of Immigration
    Litigation, with whom Benjamin C. Mizer, Principal Deputy
    Assistant Attorney General, Civil Division, United States
    Department of Justice, Stephen J. Flynn, Assistant Director,
    Office of Immigration Litigation, and Annette M. Wietecha,
    Attorney, Office of Immigration Litigation, were on brief, for
    respondent.
    December 13, 2016
    SELYA, Circuit Judge.   This case presents a question of
    first impression in this circuit: when United States Citizenship
    and Immigration Services (USCIS) has approved an I-130 "immediate
    relative" visa petition based on an alien's marriage to a United
    States citizen, does the immigration court, in a parallel removal
    proceeding, have jurisdiction to inquire into the bona fides of
    the anchoring marriage?   Here, the immigration judge (IJ) answered
    this question in the affirmative; found the anchoring marriage to
    be a sham; denied the alien's request for an adjustment of status;
    and entered an order of removal.   The Board of Immigration Appeals
    (BIA) affirmed.   After careful consideration, we hold that the
    bona fides of the anchoring marriage were properly before the
    immigration court and — with that foundation in place — we conclude
    that the BIA's decision is supported by substantial evidence.
    Accordingly, we deny the alien's petition for judicial review.
    I.   BACKGROUND
    Petitioner Wen Yuan Chan is a Chinese national.       She
    entered the United States in February of 2006 on a non-immigrant
    visitor's visa.    Around the beginning of April, she met her
    husband-to-be, Sui Wah Chan,1 who is a citizen of the United States.
    Their courtship was brief: within two months, they married.     Sui
    1Elsewhere in the record, the spelling of the name "Sui Wah
    Chan" is inconsistent.      The record does not explain these
    discrepancies, and we adopt the spelling employed by the IJ.
    - 2 -
    Wah Chan promptly filed papers with USCIS to adjust the immigration
    status of both the petitioner and her son so that they could become
    legal permanent residents (LPRs).         USCIS refused to recognize the
    marriage, however, and rejected her application for adjustment of
    status in October of 2007.2
    On    December   12,   2007,     the   Department   of   Homeland
    Security instituted removal proceedings against the petitioner
    (who, by then, had overstayed her visitor's visa).              While those
    removal proceedings were pending, Sui Wah Chan again asked USCIS,
    by means of an I-130 "immediate relative" visa petition, to
    recognize his marriage to the petitioner.             USCIS approved this
    second   I-130   petition   in    October   of    2008.   Because   removal
    proceedings were in progress, however, only the immigration court
    (not USCIS) could adjust the petitioner's status.              See 
    8 C.F.R. §§ 245.2
    (a)(1), 1245.2(a)(1)(i).
    On October 28, 2010, the petitioner filed applications
    for an adjustment of status and a waiver of inadmissibility in the
    removal proceeding.    On February 14, 2013 (ironically, Valentine's
    Day), the IJ held a hearing to determine the bona fides of the
    petitioner's marriage and to pass upon her pending applications.
    The IJ found that the petitioner's testimony was not credible and
    2 The petitioner's son apparently received an adjustment of
    status. The record contains no explanation as to why USCIS treated
    the mother and the son differently.
    - 3 -
    that, based on the evidence presented, her "marriage at the time
    of its inception was not bona fide."             Since the petitioner's
    application for an adjustment of status was premised on the
    marriage, the IJ's finding that the marriage was a sham rendered
    her ineligible to adjust her status.
    Although the inquiry might have ended there, the IJ went
    on to find the petitioner inadmissible for two separate reasons.
    First, he concluded that she was inadmissible under 
    8 U.S.C. § 1182
    (a)(6)(C)(i)   because   she   was    attempting    to   procure   an
    immigrant visa through a fraudulent marriage. Second, he concluded
    that she was inadmissible under 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I) due
    to her 2008 nolo contendere plea to a Connecticut assault charge
    (which the IJ found to be a crime involving moral turpitude).
    Next, the IJ refused the petitioner's request for a waiver of
    inadmissibility, both as a matter of discretion and because he
    found her ineligible for the waiver.             Having announced these
    rulings, the IJ wrapped up the package by ordering the petitioner's
    removal to China.
    The   petitioner   appealed   to    the   BIA,   which   affirmed
    ostensibly "[f]or the reasons discussed by the [IJ]."3              The BIA,
    3In a confused passage, the BIA also seems to have affirmed
    a decision that the IJ never made (suggesting that the IJ denied
    the application for an adjustment of status as a matter of
    discretion).     In point of fact, it was the waiver of
    inadmissibility, not the application for an adjustment of status,
    that the IJ denied as a matter of discretion. Given our conclusion
    - 4 -
    however, added its own gloss.         Like the IJ, it concluded that the
    petitioner "fail[ed] to establish [that] she entered into the
    marriage in good faith," thus rendering her ineligible for the
    relief that she sought.        In reaching this conclusion, the BIA
    explicitly rejected the petitioner's contention that her approved
    I-130 petition stripped the IJ of jurisdiction to consider whether
    her marriage was bona fide.            The BIA further agreed that the
    petitioner's     sham   marriage    rendered   her   inadmissible   under 
    8 U.S.C. § 1182
    (a)(6)(C)(i).         In view of this determination, the BIA
    saw no need to address the question of whether the petitioner was
    inadmissible on account of her criminal record.               This timely
    petition for judicial review followed.
    II.   ANALYSIS
    "Where, as here, the BIA adopts and affirms the IJ's
    decision but adds reasoning of its own, we review the tiered
    decisions as a unit."      Ramirez-Matias v. Holder, 
    778 F.3d 322
    , 325
    (1st Cir. 2015).    In this case, however, we begin with a threshold
    matter: the government's challenge to this court's jurisdiction (a
    challenge premised on what it perceives to be the discretionary
    nature of the decision below).
    that the petitioner is not eligible for an adjustment of status
    because of her sham marriage, see text infra, any error in this
    regard is manifestly harmless.
    - 5 -
    We readily acknowledge that, in the immigration context,
    "Congress has heavily circumscribed federal courts' jurisdiction
    over . . . discretionary decisions."    Mele v. Lynch, 
    798 F.3d 30
    ,
    32 (1st Cir. 2015) (citing 
    8 U.S.C. § 1252
    (a)(2)(B)(i)).        The
    government attempts to wield this principle as a shield, arguing
    that we lack jurisdiction to review the BIA's decision because the
    BIA denied the petitioner's application for an adjustment of status
    as a matter of discretion.    Such a decision, the government says,
    is one that we are forbidden from reviewing.         See 
    8 U.S.C. § 1252
    (a)(2)(B).
    Whatever application this principle may have in this
    case — a matter on which we take no view — we nonetheless have
    jurisdiction to review colorable constitutional and legal claims
    embedded in such a decision.     See Ayeni v. Holder, 
    617 F.3d 67
    ,
    70-71 (1st Cir. 2010).       In this instance, the petitioner has
    presented a colorable legal question: when USCIS has approved an
    I-130 "immediate relative" visa petition based on an alien's
    marriage to a United States citizen, does an IJ, in a parallel
    removal proceeding, nevertheless have jurisdiction to inquire into
    the bona fides of the anchoring marriage before granting an
    adjustment of status?    This question is colorable because the
    answer to it is open.   See Pan v. Gonzales, 
    489 F.3d 80
    , 84 (1st
    Cir. 2007) (describing question as "colorable" so long as the
    argument advanced has "at the very least, . . . some potential
    - 6 -
    validity").      Thus, the question provides a hook on which our
    jurisdiction can be hung.      See DaCosta v. Gonzales, 
    449 F.3d 45
    ,
    49 (1st Cir. 2006); Cho v. Gonzales, 
    404 F.3d 96
    , 98-100 (1st Cir.
    2005).
    Assured of our jurisdiction, we turn to the BIA's denial
    of the petitioner's application for an adjustment of status.              An
    adjustment of status under 
    8 U.S.C. § 1255
    (a), if granted, "permits
    certain noncitizens to become [LPRs]."            Akwasi Agyei v. Holder,
    
    729 F.3d 6
    , 9 (1st Cir. 2013).          The adjustment-of-status process
    can be initiated by an immediate relative (such as a spouse), see
    
    8 U.S.C. § 1151
    (b)(2)(A)(i), through the filing of an I-130
    petition, see Neang Chea Taing v. Napolitano, 
    567 F.3d 19
    , 21 (1st
    Cir. 2009).     USCIS conducts an investigation, determines whether
    the alien is an immediate relative of the sponsor, and approves or
    denies the petition.      See 
    id. at 21-22
    .       If USCIS approves an I-
    130 petition, the alien may then submit an application to adjust
    her status either to USCIS (if removal proceedings are not pending)
    or to the immigration court (if removal proceedings are pending).
    See 
    8 C.F.R. §§ 245.2
    (a)(1), 1245.2(a)(1)(i); Neang Chea Taing,
    
    567 F.3d at 21
    .       At a minimum, approval of such an application
    requires that the alien be "eligible to receive an immigrant visa,"
    be "admissible to the United States for permanent residence," and
    have "an immigrant visa . . . immediately available to [her] at
    the   time   [her]   application   is   filed."     
    8 U.S.C. § 1255
    (a).
    - 7 -
    Assuming that these threshold requirements are satisfied, the
    decisionmaker (whether USCIS or the IJ) must then determine, in
    the exercise of discretion, whether to adjust the alien's status.
    See 
    id.
    In the case at hand, it is undisputed that the petitioner
    had a visa immediately available to her, thanks to USCIS's approval
    of the I-130 petition.   Thus, the dispute here reduces to whether
    the petitioner is eligible and admissible.    In the petitioner's
    view, USCIS's approval of the I-130 petition completes the inquiry
    into whether her marriage is bona fide, and the IJ may not revisit
    that issue.    The government demurs, arguing that when removal
    proceedings are already in progress, USCIS's evaluation of the
    bona fides of the anchoring marriage is at most prima facie
    evidence, and that the ultimate resolution of the issue is for the
    IJ.   This disagreement over the effect of USCIS's determination
    presents a purely legal question, and "[w]e review such legal
    questions de novo, subject to established principles of agency
    deference."   DaCosta, 
    449 F.3d at 49
    .
    The petitioner's assertion — that USCIS's approval of
    the I-130 petition divests the immigration court of authority to
    revisit the bona fides of the anchoring marriage — does not
    withstand scrutiny.   When an alien seeks relief from removal, the
    law obliges the IJ to "determine whether . . . the testimony is
    credible [and] sufficient to demonstrate that the applicant has
    - 8 -
    satisfied      the     applicant's      burden     of    proof."          8      U.S.C.
    § 1229a(c)(4)(B).       This obligation extends to the alien's proof of
    her eligibility.       See id. § 1229a(c)(4)(A)(i).
    In carrying out these tasks, the IJ is empowered to
    "weigh the credible testimony along with other evidence of record."
    Id. § 1229a(c)(4)(B).         If USCIS's approval of an I-130 petition
    were accorded preclusive effect, the IJ's hands would be tied and
    he    would     be      prevented       from     fulfilling         his     statutory
    responsibility.       See id.      Nothing in the text or the structure of
    the statutory scheme permits us to truncate the IJ's role as
    suggested by the petitioner.
    The allocation of responsibilities envisioned by the
    petitioner      appears     even    more   problematic        in    light       of   the
    regulations.        Pertinently, the regulations prescribe that when an
    alien has been placed in removal proceedings, "the [IJ] has
    exclusive      jurisdiction        to   adjudicate      any    application           for
    adjustment     of    status   [that]    the     alien   may   file."        
    8 C.F.R. § 1245.2
    (a)(1)(i); see 
    id.
     § 245.2(a)(1) (reiterating USCIS's lack
    of   jurisdiction      to   adjudicate     applications       for    adjustment      of
    status with respect to aliens in removal proceedings).                      Exclusive
    jurisdiction — if it means anything at all — must mean the ability
    to assess whether the alien is eligible for relief in the first
    place.    Stripping the IJ of authority to review an essential
    threshold element of an alien's application for relief would hollow
    - 9 -
    out the IJ's exclusive jurisdiction over the adjudication of the
    application and, thus, would undercut the regulations.
    The case law points in the same direction.              Although the
    question presented is one of first impression in this circuit, we
    do not write on a pristine page.               The Ninth Circuit has examined
    and expounded upon an identical question.               See Agyeman v. INS, 
    296 F.3d 871
     (9th Cir. 2002).             In that case, the court of appeals
    rejected the alien's argument that, once the I-130 "immediate
    relative" petition was approved, the immigration court could no
    longer receive evidence questioning the bona fides of the anchoring
    marriage.    See 
    id.
     at 879 n.2.           The court reasoned persuasively
    that, although "[t]he approved I-130 [petition] provides prima
    facie evidence that the alien is eligible" for an adjustment of
    status, the alien must still "prove his eligibility . . . by the
    preponderance of the evidence" in the immigration court.                   
    Id.
       So
    viewed, an approved I-130 petition is only a piece of evidence to
    be   introduced    before   the      IJ   in   the    alien's   effort    to   prove
    eligibility for an adjustment of status.                See 
    id.
    In    an   effort   to    blunt     the    combined   force    of    the
    applicable statutory and regulatory structure and the case law,
    the petitioner relies on the BIA's decision in Matter of Arthur,
    
    20 I. & N. Dec. 475
     (BIA 1992).4               This reliance is mislaid.         For
    4The petitioner also relies on the BIA's decision in In re
    H-A-, 
    22 I. & N. Dec. 728
     (BIA 1999). That decision, however,
    - 10 -
    one thing, Matter of Arthur is inapposite.             The decision there
    addressed the question of whether the BIA would grant a motion to
    reopen   for    consideration   of   adjustment   of    status   where    the
    underlying I-130 petition was not yet adjudicated and was based on
    a marriage entered into after removal proceedings had commenced.
    See 20 I. & N. Dec. at 479.        The features that distinguish Matter
    of Arthur from the case at hand are obvious.             Here — unlike in
    Matter of Arthur — no motion to reopen was at issue; the anchoring
    marriage   was    entered   into     before   removal    proceedings      had
    commenced; and the I-130 petition already had been approved.
    Trying to fit this case into Matter of Arthur's precedential orbit
    is like trying to force a square peg into a round hole.
    There is a second — and even more formidable — reason
    why Matter of Arthur does not aid the petitioner's cause.                Long
    before the events in this case transpired, the BIA explicitly
    overruled Matter of Arthur.     See In re Velarde-Pacheco, 
    23 I. & N. Dec. 253
    , 257 (BIA 2002); see also Conteh v. Gonzales, 
    461 F.3d 45
    , 65 (1st Cir. 2006) (noting the BIA's overruling of Matter of
    Arthur).       It strains credulity to suggest that an overruled
    rests on the decision in Matter of Arthur and furnishes no
    independent authority for the proposition that the petitioner
    urges.
    - 11 -
    precedent   should,    through   some   mysterious   alchemy,   be   given
    controlling weight.5
    To say more about this claim of error would be to paint
    the lily.     We hold that when an alien in removal proceedings
    applies for an adjustment of status based on her marriage to a
    United States citizen, the IJ has jurisdiction to inquire into the
    bona fides of the anchoring marriage even if USCIS already has
    approved an I-130 petition to the alien's behoof.6              In such a
    situation, the approved I-130 petition is not irrelevant.              An
    approved I-130 petition from USCIS shows that the alien has a visa
    available to her and, thus, paves the way for the IJ to reach the
    issues of eligibility for adjustment of status and admissibility.
    See 
    8 U.S.C. § 1255
    (a); Neang Chea Taing, 
    567 F.3d at 21
    . Moreover,
    the approved I-130 petition may serve as prima facie evidence of
    the authentic character of the petitioner's marriage (an issue
    5 To be sure, Velarde-Pacheco was itself overruled in part by
    Matter of Avetisyan, 
    25 I. & N. Dec. 688
     (BIA 2012).          That
    overruling, however, did not purpose to reinstate the discredited
    decision in Matter of Arthur and, so, is of no moment here.
    6 In an earlier case, we wrote that "[o]nce classified as an
    immediate relative, the alien-spouse becomes eligible to seek an
    adjustment of his immigration status . . . ." Naeem v. Gonzales,
    
    469 F.3d 33
    , 36 n.1 (1st Cir. 2006) (dictum). That statement was
    addressed to a hypothetical application for adjustment of status,
    filed in the absence of an ongoing removal proceeding. Such an
    application would be made to USCIS, not to an immigration court,
    and would not implicate the critical question that the petitioner
    raises in this case.
    - 12 -
    relevant to her quest for an adjustment of status).     See Agyeman,
    
    296 F.3d at
    879 n.2.
    Our conclusion that the IJ had jurisdiction to examine
    the bona fides of the petitioner's marriage does not end our
    odyssey. As a fallback, the petitioner challenges the IJ's finding
    that the marriage was a sham.     Absent any material error of law —
    and we discern none here — we review such a finding only to ensure
    that it is supported by substantial evidence.       See Nikijuluw v.
    Gonzales, 
    427 F.3d 115
    , 120 (1st Cir. 2005).       This is a "highly
    deferential standard," 
    id.,
     under which we cannot disturb the
    agency's determination as long as it is "supported by reasonable,
    substantial, and probative evidence on the record considered as a
    whole."    INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992) (citation
    omitted).     It follows that such a determination will stand unless
    "any reasonable adjudicator would be compelled to conclude to the
    contrary."     
    8 U.S.C. § 1252
    (b)(4)(B).
    The alien has the burden of proving the bona fides of an
    anchoring marriage by a preponderance of the evidence.           See
    Agyeman, 
    296 F.3d at
    879 n.2; see also 8 C.F.R. 1240.8(d).         A
    marriage is bona fide if "at the time that the newlyweds plighted
    their troth, [the alien] intended to establish a life with [her]
    spouse."     McKenzie-Francisco v. Holder, 
    662 F.3d 584
    , 587 (1st
    Cir. 2011).     The record before us contains substantial evidence
    - 13 -
    from which the IJ reasonably could — and did — find that the
    petitioner did not prove such an intent.7
    To begin, the couple married after an acquaintance that
    spanned no more than two months.       Almost immediately thereafter,
    the petitioner moved out of state for a lengthy period of time,
    leaving her new husband behind.      This sequence of events supports
    an inference that the petitioner never intended to establish a
    life with Sui Wah Chan.      See Jing Lin v. Holder, 
    759 F.3d 110
    ,
    112-13 (1st Cir. 2014) (upholding determination that marriage was
    not bona fide based on brief courtship and lack of time spent
    living together).
    The testimony of both the petitioner and Sui Wah Chan
    buttresses    this   inference.     The    petitioner   gave   materially
    inconsistent answers regarding where she had lived during the
    marriage.     Importantly, when asked to identify the address that
    she shared with Sui Wah Chan, she could not do so, claiming that
    she did not "know how to say the name" of the street.          Nor was Sui
    Wah Chan's testimony helpful to the petitioner's cause.            He had
    never met her son (though he had successfully sponsored the son's
    visa application) and expressed his belief that the son was still
    7The petitioner argues that both the IJ and the BIA ignored
    this test and focused instead on the petitioner's motive for
    entering into the marriage. The record belies this argument: it
    makes manifest that the IJ and the BIA laid out the correct test
    and proceeded to apply it.
    - 14 -
    living in China.   In fact, the petitioner's son had been residing
    in the United States for at least a year, if not more, before the
    date on which Sui Wah Chan testified.       The couple's lack of
    familiarity with the most basic details of their allegedly shared
    life provides powerful evidence that they did not intend to
    establish a life together.    See McKenzie-Francisco, 
    662 F.3d at 587
    .
    There is more.    Both the petitioner and Sui Wah Chan
    testified, in effect, that their marriage was an arrangement.   Sui
    Wah Chan stated: "I wanted to marry her because I wanted someone
    . . . to help me . . . .     In return, I would help her with her
    green card."8   The petitioner confirmed this account.   The IJ and
    the BIA were entitled to treat their mutual admission that the
    petitioner had entered into the marriage to obtain an immigration
    benefit as evidence that the marriage was not bona fide.        Cf.
    Rodriguez v. INS, 
    204 F.3d 25
    , 27, 28 (1st Cir. 2000) (considering
    an alien's statement that he married only to obtain a green card
    "very powerful evidence that the original intent was to use
    marriage as a device to evade the immigration laws").
    Lastly, the petitioner lacked the sort of documentary
    proof that might have led a factfinder reasonably to conclude that
    8
    "Green card" is a colloquial term for an "employment
    authorization card." Arevalo v. Ashcroft, 
    344 F.3d 1
    , 6 (1st Cir.
    2003).
    - 15 -
    she and Sui Wah Chan intended to make a life together.                    See Reynoso
    v.   Holder,    
    711 F.3d 199
    ,        207   (1st    Cir.    2013)     (upholding   a
    determination that marriage was not bona fide where the alien's
    documentary     evidence     was    "limited"         and   lacked     detail).   For
    example, despite asserting that she and Sui Wah Chan held a joint
    bank account, she presented no corroboration of the existence of
    such an account.        Her only documentary proof of the sort of
    comingling of assets that might have suggested that they intended
    to establish a life together was a single year of federal income
    tax filings (2011), which showed that she and Sui Wah Chan filed
    jointly (as husband and wife) for that one year.                       The petitioner
    did not explain the absence of similar filings for the five earlier
    years of the marriage.
    In a similar vein, the record is thin with respect to
    documentary evidence showing that the couple lived together during
    the marriage.      In this regard, the petitioner's sole proffer was
    a form letter from the Boston Housing Authority that listed her as
    a member of Sui Wah Chan's household.                   The IJ and the BIA could
    reasonably find that isolated form letter to constitute no proof.
    To sum up, the evidence offered by the petitioner in
    support of the bona fides of the anchoring marriage was weak.
    Given the paucity of the petitioner's proffer, the agency's "sham
    marriage"      determination       was    consistent        with   the   "reasonable,
    substantial, and probative evidence on the record considered as a
    - 16 -
    whole."        Elias-Zacarias, 
    502 U.S. at 481
     (citation omitted).
    Surely, this chiaroscuro record does not compel a conclusion
    contrary to that reached by the IJ and the BIA.9          We therefore
    reject the petitioner's fact-based challenge.
    III.       CONCLUSION
    We need go no further. For the reasons elucidated above,
    the petition for judicial review is denied.
    So ordered.
    9
    Given this conclusion, we need not address the petitioner's
    remaining claims of error.      Those claims relate to the IJ's
    findings concerning admissibility and waiver of inadmissibility —
    issues rendered moot by the supportable determination that the
    petitioner was not eligible for an adjustment of status.
    - 17 -