Sanchez v. Holder , 498 F. App'x 104 ( 2012 )

11-5159-ag
Sanchez v. Holder
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of September, two thousand twelve.
PRESENT: CHESTER J. STRAUB,
ROBERT D. SACK,
DENNY CHIN,
Circuit Judges.
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MARIA ELENA VELAZCO SANCHEZ, A.K.A.
CORDERO,
Petitioner,
-v.- 11-5159-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONER: Glenn L. Formica, Elyssa N. Williams,
Formica, P.C., New Haven, CT.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Keith I. McManus,
Senior Litigation Counsel; Brendan P.
Hogan, Lisa M. Arnold, Attorneys, Office
of Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals ("BIA") decision, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Maria Elena Velazco Sanchez, a native and citizen of
Peru, seeks review of a November 16, 2011 decision of the BIA
affirming the December 8, 2009 decision of Immigration Judge
("IJ") Michael W. Straus, denying her application for adjustment
of status. In re Maria Elena Velazco Sanchez, No. A078 391 209
(B.I.A. Nov. 16, 2011), aff'g No. A078 391 209 (Immig. Ct.
Hartford Dec. 8, 2009). We assume the parties' familiarity with
the underlying facts and procedural history of the case. Under
the circumstances of this case, we review the IJ's decision as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005).
An alien who entered the United States without
inspection may be eligible to adjust status under 8 U.S.C.
§ 1255(i) if she is the beneficiary of an approved visa petition
filed on or before April 30, 2001. 8 U.S.C. § 1255(i). Where a
visa petition was filed prior to April 30, 2001, but not
adjudicated by that date, the alien on whose behalf the petition
was filed may be eligible to "grandfather" the petition if it was
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"approvable when filed." 8 C.F.R. § 1245.10(a)(1)(A). A visa
petition is approvable when filed if it was properly filed,
meritorious in fact, and non-frivolous. Id. § 1245.10(a)(3). A
petition is "meritorious in fact" only if there is "a showing
that the marriage on which it is based was bona fide." In re
Riero, 24 I. & N. Dec. 267, 268 (B.I.A. 2007); accord Linares
Huarcaya v. Mukasey, 550 F.3d 224, 227-31 (2d Cir. 2008). To
establish a bona fide marriage, a petitioner must show that she
had "a genuine marriage in which the parties intended to share a
life as husband and wife," not merely "a marriage of convenience
designed solely to confer an immigration benefit on one of the
parties." Riero, 24 I. & N. at 268.
Prior to entering the United States, Sanchez married
Cesar Rafael, with whom she had three children. She subsequently
divorced Rafael in Peru. After entering the United States, she
married Alberto Cordero, a U.S. citizen, on April 24, 2001. Two
days later, on April 26, 2001, Cordero filed the petition at
issue in this case on Sanchez's behalf. After the petition was
denied on February 13, 2002, Sanchez divorced Cordero and
remarried Rafael, who resided in the United States and had
acquired lawful permanent resident status.
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As Cordero filed a visa petition on Sanchez's behalf
prior to April 30, 2001, and the petition remained unadjudicated
as of that date, the question is whether the petition was
"approvable when filed." The IJ reasonably found that the
petition was not meritorious in fact and thus not approvable when
filed because Sanchez omitted material information -- in
particular, that she had previously been married to Rafael and
had three children with him -- and failed to demonstrate that the
petition was based on a bona fide marriage. Sanchez argues that
the IJ mischaracterized the omissions in the petition as
"misrepresentations" because she had been unable to review the
petition, which was prepared by a third party, due to her lack of
fluency in English. The IJ, however, reasonably rejected her
explanations because both she and Cordero signed the petition,
attesting that the information contained therein was true and
correct. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
2005) (noting that IJ need not credit applicant's explanations
for inconsistent testimony unless those explanations would compel
reasonable fact-finder to do so).
Furthermore, although Sanchez argues that the IJ
imposed an overly stringent burden of proof, she had the burden
of demonstrating that her marriage was bona fide, see Aslam v.
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Mukasey, 537 F.3d 110, 115-16 (2d Cir. 2008), and the IJ applied
the appropriate standard, requiring evidence beyond that which
would simply demonstrate that a marriage existed, including
"insurance policies, property leases, income tax forms, or bank
accounts, and testimony or other evidence regarding courtship,
wedding ceremony, shared residence, and experiences." Riero, 24
I. & N. Dec. at 269 (internal quotation marks omitted). The IJ
also reasonably found that the evidence Sanchez provided to
demonstrate that her marriage to Cordero was bona fide, including
her testimony, the testimony of a friend, and a signed check from
a joint checking account with Cordero, was insufficient,
particularly in light of inconsistencies between her testimony
and her supporting documentation as to when and where she and
Cordero resided together. See id. at 269-70 (finding that alien
could not establish that marriage to ex-wife was bona fide based
solely on his and his ex-wife's contradictory testimony).
Because the IJ's findings that the petition omitted
material information and that Sanchez failed to establish a bona
fide marriage to Cordero are supported by substantial evidence,
we conclude that the IJ did not err in denying her application
for adjustment of status. See 8 C.F.R. § 1245.10(a)(3); Riero,
24 I. & N. Dec. at 268-70.
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion for a
stay of removal is DENIED as moot.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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