Darsoni De Oliveira v. U.S. Attorney General ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15068
Non-Argument Calendar
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Agency No. A200-413-903
DARSONI DE OLIVEIRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 15, 2015)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Darsoni De Oliveira, a native and citizen of Brazil, seeks review of the
Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) finding that she is removable for having married to obtain a visa by
fraud. See 8 U.S.C. § 1227(a)(1)(G)(ii). On appeal, De Oliveira challenges
whether substantial evidence supports the IJ’s decision and whether the IJ made an
adequate credibility determination. After careful review, we deny the petition in
part and dismiss it in part.
I.
De Oliveira entered the United States in July 2005 as a nonimmigrant visitor
with authorization to remain until January 2006. De Oliveira married Carlos
Martinez, a Cuban citizen, on November 19, 2009. Shortly thereafter, on
November 30, 2009, De Oliveira filed an I–485 application for adjustment of status
under the Cuban Refugee Adjustment Act.
On May 10, 2010, an officer with the United States Citizenship and
Immigration Services (“USCIS”) conducted an interview with De Oliveira
concerning her application for adjustment of status. During this interview, De
Oliveira signed a sworn statement admitting that her marriage to Martinez was not
genuine and was made solely for immigration purposes. Relying on De Oliveira’s
statement, USCIS denied her I–485 adjustment application.
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That same day, the Department of Homeland Security (“DHS”) served De
Oliveira with a notice to appear, charging her as removable for remaining in the
United States longer than permitted, 8 U.S.C. § 1227(a)(1)(B), and for failing or
refusing to fulfill a marital agreement that was made for the purpose of obtaining
immigrant status, id. § 1227(a)(1)(G)(ii). At the master calendar hearing in June
2011, De Oliveira conceded that she had remained in the United States for a time
longer than permitted, but she denied that she had entered into a sham marriage
solely for immigration purposes.
The case proceeded to a merits hearing before the IJ in March 2013. At the
hearing, the government submitted copies of De Oliveira’s sworn statement and
the USCIS’s denial of her I–485 adjustment application. The government also
elicited testimony from Mark Robertson, the USCIS officer who conducted the
interview with De Oliveira concerning her I–485 application.
Robertson testified that, during separate interviews with De Oliveira and
Martinez, he discovered inconsistencies in their responses, including where and
how they obtained their engagement rings. When he confronted De Oliveira with
these inconsistencies, she admitted that she had married Martinez for the sole
purpose of using his Cuban citizenship to obtain her green card 1 and that they had
never lived together. She then executed the sworn statement memorializing these
1
“Green card” refers to legal-permanent-resident immigration status. See, e.g., Foy v.
Schantz, Schatzman & Aaronson, P.A., 108 F.3d 1347, 1348 (11th Cir. 1997).
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and other admissions. Robertson testified that De Oliveira was not threatened,
coerced, or enticed into giving this statement and that only he and another USCIS
officer were present for the interview.
According to De Oliveira’s testimony at the hearing, she married Martinez
because she loved him, even if she also married him to obtain a green card. She
stated that they were married in Tampa and that Martinez resided with her in
Sarasota. De Oliveira also testified that she was coerced into signing the sworn
statement, which was prepared by Robertson. She described the interview process
as “terrible,” lasting six hours and being conducted in the presence of four USCIS
officers, two of whom were armed. According to De Oliveira, at no point during
this time was she advised of her right to obtain an attorney. De Oliveira stated that
Robertson told her she would be arrested if she failed to sign the statement.
On cross-examination, De Oliveira admitted that she and Martinez divorced
in December 2010. She acknowledged that she had not seen Martinez since the
USCIS interview but explained that this was because USCIS told her she should
not have contact with him. When confronted with her prior, sworn statement about
where Martinez lived during their marriage, she clarified that he lived in Tampa
because he had a problem with law enforcement in Sarasota. She did not deny
saying the things in the sworn statement but claimed that she had been threatened.
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The IJ ordered De Oliveira removed to Brazil. The IJ determined that De
Oliveira’s marriage to Martinez was a sham for the sole purpose of obtaining a
visa, so she was removable under 8 U.S.C. § 1227(a)(1)(G)(ii). The IJ reviewed
the documentary and testimonial evidence, noting that De Oliveira herself
conceded, in her 2010 interview with USCIS, that she and Martinez had never
lived together as husband and wife and that their marriage was fraudulent.
The IJ also addressed the respective credibility of the witnesses, noting that
the case was “basically a credibility issue between the officer of the USCIS and the
respondent herself.” The IJ credited Robertson’s testimony over De Oliveira’s. In
support of his conclusion, the IJ noted that he had observed both witnesses’
demeanor while testifying and that he believed De Oliveira was untruthful because
she was unable to look him in the eye while testifying, which is “usually” a sign of
untruthfulness. In addition, the IJ stated, De Oliveira’s testimony was inconsistent
with her own prior statements and Robertson’s testimony. Moreover, the IJ found,
there was nothing in the record to suggest that De Oliveira’s prior sworn statement
was coerced or that the immigration officer provided untruthful testimony.
Accordingly, the IJ found that De Oliveira had married for the purpose of seeking a
visa by fraud.
De Oliveira appealed to the BIA, which affirmed the IJ’s decision. The BIA
determined that substantial evidence supported the IJ’s removability determination,
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including the sworn statement and Robertson’s corroborating testimony. In
addition, the BIA found that the IJ’s adverse credibility finding was not clearly
erroneous, given that De Oliveira’s testimony at the hearing was inconsistent with
Robertson’s testimony and her prior sworn statement. Accordingly, the BIA
dismissed De Oliveira’s appeal. De Oliveira timely filed with this Court a petition
for review of the BIA’s order.
II.
Generally, we only review the decision of the BIA as the final agency
decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). However, where
the BIA agrees with the IJ’s reasoning, we also review the decision of the IJ to the
extent of that agreement. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350
(11th Cir. 2009). Here, because the BIA agreed with the IJ’s reasoning, we review
the decisions of both the IJ and BIA. See id.We review administrative factual findings for substantial evidence. Adefemi
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). Under the
substantial-evidence test, we view the record in the light most favorable to the
agency’s decision, drawing all reasonable inferences in favor of that decision. Id.
at 1027. “We must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record as a whole.” Id. (internal
quotation marks omitted). Put differently, the decision of the BIA and IJ can only
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be reversed if the record compels a contrary conclusion. Id.; see 8 U.S.C.
§ 1252(b)(4)(B). “[T]he mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings.”
Adefemi, 386 F.3d at 1027.
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to
consider claims raised in a petition for review that were not raised before the BIA.
Id.; see 8 U.S.C. § 1252(d)(1).
III.
De Oliveira was charged with having engaged in marriage fraud to obtain a
visa. See 8 U.S.C. § 1227(a)(1)(G). Specifically, DHS alleged that De Oliveira
was subject to removal under 8 U.S.C. § 1227(a)(1)(G)(ii), which provides that an
alien is subject to removal if she “has failed or refused to fulfill the alien’s marital
agreement which . . . was made for the purpose of procuring the alien’s admission
as an immigrant.” Id. The IJ found that De Oliveira entered into a sham marriage
for the sole purpose of obtaining a visa and therefore ordered her removal.
A.
De Oliveira challenges two aspects of the IJ’s adverse credibility
determination. First, she contends that the IJ improperly relied on her demeanor,
particularly her lack of eye contact, to make an adverse credibility finding and to
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sustain her removal. She asserts that cultural differences undermine any reliance
on the lack of eye contact to assess a witness’s credibility. See, e.g., Kadia v.
Gonzales, 501 F.3d 817, 819 (7th Cir. 2007) (noting “that immigration judges
often lack the ‘cultural competence’ to base credibility determinations on an
immigrant’s demeanor”). Second, she contends that the IJ did not make a specific
credibility determination, instead merely stating that the lack of eye contact
“usually” indicates untruthfulness.
We lack jurisdiction to consider these arguments because they were not
raised before the BIA. In her brief to the BIA, De Oliveira argued that the IJ’s
removability determination was not supported by substantial evidence and that the
IJ improperly shifted the burden of proof, but she did not challenge the IJ’s
reliance on her demeanor or the adequacy of the IJ’s credibility determination. In
her brief on appeal to this Court, De Oliveira asserts that her filings before the BIA
“sufficiently challenged the manner in which the Immigration Court arrived at its
credibility determination,” (Appellant’s Br. at 33), but we have reviewed these
documents and found no such similar arguments. Although the BIA addressed the
IJ’s adverse credibility determination sua sponte, § 1252(d)(1)’s exhaustion
requirement still applies to bar our review. See Amaya-Artunduaga, 463 F.3d at
1250-51 (“[W]e think the goals of exhaustion are better served by our declining to
review claims a petitioner, without excuse or exception, failed to present before the
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BIA, even if the BIA addressed the underlying issue sua sponte.”). Accordingly,
we dismiss De Oliveira’s challenge to the bases and adequacy of the IJ’s adverse
credibility determination.
B.
De Oliveira also maintains that DHS failed to establish her removability
under 8 U.S.C. § 1227(a)(1)(G)(ii) “by clear and convincing evidence” that is
“reasonable, substantial, and probative,” as required by 8 U.S.C. § 1229a(c)(3)(A).
To reiterate, we review whether “substantial evidence” supports the agency’s
decision, and “[w]e must affirm the [agency’s] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Adefemi, 386 F.3d at 1026-27 (internal quotation marks omitted). The
fact that DHS was required to prove De Oliveira’s removability by clear and
convincing evidence “does not make our review of the [agency’s] decision more
stringent.” Id. at 1027.
Here, substantial evidence supports the IJ and BIA’s conclusion that De
Oliveira entered into a fraudulent marriage for the purpose of obtaining admission.
First, De Oliveira signed a sworn statement in May 2010 admitting that she
married Martinez solely for the purpose of obtaining her green card and that she
intended to divorce him within two months of obtaining it. In the statement, De
Oliveira also admitted that she and Martinez never lived together as husband and
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wife and that they had staged pictures together and memorized each other’s
personal information in order to make their marriage seem genuine.
Second, the testimony of the USCIS officer who conducted De Oliveira’s
adjustment interview corroborated the sworn statement. The officer, Robertson,
testified that De Oliveira admitted that her marriage was a sham after being
confronted with discrepancies between her responses and those of Martinez in
separate interviews. Although De Oliveira later testified that the sworn statement
was coerced, she did not deny having said the things attributed to her, and
Robertson’s testimony contradicted De Oliveira’s portrayal of the interview as
coercive or threatening. 2 The IJ credited Robertson’s testimony over De
Oliveira’s. Under these circumstances, the fact that De Oliveira’s testimony
supports a conclusion opposite from that reached by the IJ “is not enough to justify
a reversal of the administrative findings.” Adefemi, 386 F.3d at 1027.
Finally, some of De Oliveira’s testimony at the hearing likewise supported
the agency’s determination. For instance, she admitted that she married Martinez
in part to obtain a green card, even if she also maintained that she married him
because she loved him. She also testified that she had not seen Martinez since the
2
De Oliveira also contends that the BIA erred in failing to remand the matter to the IJ
because she submitted a sworn declaration with her brief to the BIA explaining that she was
coerced into signing the sworn statement. Given that this issue was presented and resolved by
the IJ at the hearing, with De Oliveira testifying to substantially the same facts as contained in
her attached declaration, remand was unnecessary.
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USCIS interview and otherwise indicated that she had essentially no involvement
with Martinez once her application for adjustment of status was denied.
Overall, the record does not compel a conclusion contrary to the IJ and
BIA’s determination that De Oliveira was removable for having engaged in
marriage fraud to obtain admission. Accordingly, we deny De Oliveira’s petition
in this respect.
PETITION DENIED IN PART, AND DISMISSED IN PART.
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