Orellana v. Holder ( 2014 )

13-1885
Orellana v. Holder
BIA
Straus, IJ
A074 916 212
A094 892 836
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 20th day of May, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHESTER J. STRAUB,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _____________________________________
11
12 HECTOR LEONARDO MOROCHO ORELLANA,
13 ANGELICA GUTIERREZ MORALES,
14
15 Petitioners,
16
17 v. 13-1885
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: GLENN LOUIS FORMICA (Elyssa Nicole
26 Williams, on the brief), Formica
27 Williams, P.C., New Haven, CT.
28
29 FOR RESPONDENT: JESSICA EDEN SHERMAN, Office of
30 Immigration Litigation, Civil
31 Division (Song E. Park, Senior
32 Litigation Counsel, Office of
33 Immigration Litigation, Civil
1 Division; Stuart F. Delery,
2 Assistant Attorney General, Civil
3 Division; Keith I. McManus, Senior
4 Litigation Counsel, on the brief),
5 United States Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12
13 Petitioner Hector Leonardo Morocho Orellana, a native
14 and citizen of Ecuador, seeks review of an April 15, 2013
15 order of the BIA, affirming the April 19, 2011 decision of
16 Immigration Judge (“IJ”) Michael W. Straus, which ordered
17 him removed. See In re Hector Leonardo Morocho Orellana,
18 No. A074 916 212 (B.I.A. Apr. 15, 2013), aff’g No. A074 916
19 212 (Immig. Ct. Hartford Apr. 19, 2011); In re Angelica
20 Gutierrez Morales, No. A094 892 836 (B.I.A. Apr. 15, 2013),
21 aff’g No. A094 892 836 (Immig. Ct. Hartford Apr. 19, 2011).
22 We assume the parties’ familiarity with the underlying
23 facts, the procedural history, and the issues presented for
24 review.
25
26 We review the IJ’s decision as supplemented by the BIA.
27 See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
28 Although we lack jurisdiction to review the discretionary
29 denial of an adjustment application, see 8 U.S.C.
30 § 1252(a)(2)(B)(i), we can review a denial based solely on
31 the alien’s statutory ineligibility to adjust status, see
32 id. § 1252(a)(2)(D) (permitting review of constitutional
33 claims and questions of law); Sepulveda v. Gonzales, 407
34 F.3d 59, 62-63 (2d Cir. 2005) (an alien’s statutory
35 eligibility for relief is reviewable). Findings of fact
36 that are made in connection with statutory eligibility
37 determinations are reviewed for substantial evidence. See 8
38 U.S.C. § 1252(b)(4)(B); Sumbundu v. Holder, 602 F.3d 47, 52
39 (2d Cir. 2010) (noting that Sepulveda established that a
40 non-discretionary decision made in connection with an
41 eligibility determination may be reviewed for substantial
42 evidence).
43
44 An alien who entered the United States without
2
1 inspection, such as Orellana, is ineligible for an
2 adjustment of status to lawful permanent resident unless he
3 is the beneficiary of a visa petition filed on or before
4 April 30, 2001 that was “approvable when filed.” 8 U.S.C.
5 § 1255(i); 8 C.F.R. § 1245.10(a)(1). The regulations on
6 such grandfathering define “approvable when filed” as
7 “properly filed, meritorious in fact, and non-frivolous.” 8
8 C.F.R. § 1245.10(a)(3). A marriage-based visa petition is
9 “meritorious in fact” only if it is “based on a genuine
10 marriage in which the parties intended to share a life as
11 husband and wife, not a marriage of convenience designed
12 solely to confer an immigration benefit on one of the
13 parties.” In re Riero, 24 I. & N. Dec. 267, 268 (B.I.A.
14 2007); see Linares Huarcaya v. Mukasey, 550 F.3d 224, 230
15 (2d Cir. 2008) (per curiam) (approving of Riero’s
16 interpretation).
17
18 Under this law, Orellana could be eligible to adjust
19 status only if he demonstrated that the visa petition filed
20 by ex-wife Luz Garzon was properly filed and that their
21 marriage was bona fide. The agency acted within its
22 discretion in finding that he failed to do so. As a
23 threshold matter, Orellana never produced any evidence that
24 when she married him, the bride had divorced her prior
25 husband. If Garzon was married to someone else, her
26 marriage to Orellana was not bona fide, even if they might
27 otherwise have intended to share a life as husband and wife.
28
29 But the record also lacked evidence of such an
30 intention. Orellana admitted that he learned about Garzon’s
31 ex-husband only after their interview with the Immigration
32 and Naturalization Service in 1999; that he met a few of her
33 friends, but not her family; and that he never visited her
34 in jail--indeed, he did not even know why she was in jail.
35 Combined with Garzon’s failure to disclose her prior
36 marriage on the visa petition, the agency had discretion to
37 find that the petition was neither properly filed nor
38 meritorious.
39
40 In the main, Orellana argues that the agency overlooked
41 the documentary evidence he presented concerning his
42 relationship with Garzon. But, as the IJ observed, most of
43 those documents “do not address that marriage, or have
44 anything to do with his ex-wife”; they demonstrated that
3
1 Orellana lived in the “marital home,” but not that he and
2 Garzon lived there together.
3
4 Orellana posits that he had no reason to enter a sham
5 marriage because Luis Rojas, who testified at his merits
6 hearing, could have sponsored him. That may be so. But
7 even if Orellana did not marry Garzon solely for an
8 immigration benefit, he never produced proof that Garzon was
9 free to marry him.
10
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, the stay of
13 removal that the Court previously granted in this petition
14 is VACATED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
4