De Guzman v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-24-2008
De Guzman v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3947
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 06-3947
_______________
CRISOSTOMO MACARAEG DEGUZMAN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A72-747-583)
Immigration Judge Henry S. Dogin
_______________
Argued January 7, 2008
Before: FUENTES and JORDAN, Circuit Judges
and O’NEILL*, District Judge.
(Filed: January 24, 2008 )
_______________
_______________
*Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
Raymond P. D’Uva [ARGUED]
Law Offices of Raymond P. D’Uva
17 Academy Street - #1000
Newark, NJ 07102
Counsel for Petitioner
Richard M. Evans
Paul Fiorino
Kohsei Ugumori [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Petitioner, Crisostomo Macaraeg De Guzman, a native and citizen of the
Philippines, seeks review of a final order of removal issued against him by the Board of
Immigration Appeals (“BIA”). Because we conclude that the BIA did not err in affirming
the decision of the Immigration Judge (“IJ”), we will deny the petition for review.1
1
We have jurisdiction to review the BIA’s final decision pursuant to 8 U.S.C.
§ 1252(a)(1). The Court’s review of the BIA’s legal determinations is de novo. Partyka
v. Attorney General, 417 F.3d 408 (3d Cir. 2005). In cases where the BIA adopts the IJ’s
decision, we may review the IJ’s opinion. Shah v. Attorney General, 446 F.3d 429, 434
(3d Cir. 2006). In reviewing factual findings, “[t]he Court will uphold the agency's
findings of fact to the extent that they are supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002) (internal quotation marks and citation omitted).
2
I. Background
De Guzman arrived in Newark, New Jersey on January 21, 1994 with his wife,
Miriam Alcoy (“Miriam”), who had an H-1 visa, and he was admitted on January 24,
1994 as an H-4 nonimmigrant derivative. On May 2, 1994, based on an approved visa
petition filed by Miriam on his behalf, De Guzman’s status was adjusted to permanent
legal resident. On June 21, 2004, however, the Department of Homeland Security (the
“DHS”) served De Guzman with a Notice to Appear in Removal Proceedings (“NTA”).
He was charged with removability pursuant to § 237 a)(1)(A) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(A), for being inadmissible at the time of
his entry and at the time of his adjustment of status under INA § 212(a), 8 U.S.C.
§ 1182(a), because: (1) he allegedly did not possess a valid entry visa at the time of entry
into the United States, INA § 212 (a)(6)(C)(I), 8 U.S.C. § 1182(a)(6)(C)(I) and (2) he
allegedly committed fraud or willful misrepresentation of a material fact in seeking to
procure a visa, other documentation, or other benefit provided under the INA in entering
the United States, INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a(7)(A)(i)(I).
The removability charges stemmed from DHS’s discovery that, prior to his
marriage to Miriam in 1993, De Guzman was married to Helen Garrovillas (“Helen”).
DHS asserts that De Guzman was still married to Helen when he married Miriam, and
that he fraudulently concealed that fact in order to gain entry into the United States and
adjustment of status through his marriage to Miriam. At an August 29, 2005 hearing
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before an IJ, De Guzman testified that he believed that his marriage to Helen had been
legally terminated in 1991 due to her abandonment of him, causing him to believe that he
could marry Miriam in 1993 without first securing a divorce or annulment to end his
marriage to Helen. In 2003, De Guzman did obtain an annulment of his marriage to
Helen.
De Guzman filed a motion to terminate the removal proceedings based upon
DHS’s failure to commence the proceedings within five years of his adjustment of status
to permanent resident, pursuant to INA § 246, 8 U.S.C. § 1256. He also argued that the
removal proceedings should be terminated because he had obtained an annulment of his
first marriage, effectively negating that marriage’s existence after the fact and rendering
his 1993 marriage to Miriam valid. On March 1, 2005, the IJ denied De Guzman’s
motion to terminate.
De Guzman then filed an application for cancellation of removal, to be considered
in conjunction with the removal proceedings, claiming that his removal to the Philippines
would result in his U.S. citizen children experiencing exceptional and extremely unusual
hardship. He alleged that both children have severe asthma, which requires medical care
and the use of inhalers and other breathing devices. On August 29, 2005, the IJ denied
De Guzman’s application, finding that his children’s asthma was not severe enough to
constitute exceptional and extremely unusual hardship.
4
De Guzman appealed the IJ’s decision to the BIA, and on August 2, 2006, the BIA
adopted and affirmed both the decision to deny the motion to terminate removal and the
decision to deny cancellation of removal. On August 31, 2006, De Guzman filed with the
BIA a motion to reconsider. At the same time, he filed in this Court his petition for
review of the BIA’s decision.2 We will deny the petition for review.
II. Discussion
A. De Guzman’s Motion to Terminate the Removal Proceedings Pursuant
to 8 U.S.C. § 1256(a)
De Guzman argues that, for two reasons, the IJ and BIA erred in denying his
motion to terminate the removal proceedings. First, he asserts that the motion to
terminate should have been granted because, contrary to INA § 246, 8 U.S.C. § 1256, the
DHS failed to commence the removal proceedings within five years of his adjustment of
status to permanent resident in 1994. Second, he maintains that the motion to terminate
should have been granted because in 2003 he obtained an annulment of his first marriage,
which voided that marriage from the beginning.
1. Five-year limitations period.
With respect to DHS’s failure to commence removal proceedings within five years
of the adjustment of his status, De Guzman argues that, not only does INA § 246,
2
The BIA denied De Guzman’s motion to reconsider, and he has not petitioned for
review of that decision.
5
8 U.S.C. § 1256,3 expressly provide for a five-year time limit on removal proceedings, but
our decision in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996), necessitates the imposition
of the five-year limit. We disagree.
The express language of INA § 246 only provides for a five-year limitations period
on rescission proceedings. See Asika v. Ashcroft, 362 F.3d 264, 267 (4th Cir. 2004)
(“[O]n its own terms, section 246(a) discusses only the rescission of status adjustments
and does not purport to limit the Attorney General’s power of deportation.”). The statute
does not extend the limitations period to removal proceedings, which, generally speaking,
can be instituted at any time. Contrary to De Guzman’s argument, the second sentence of
the statute does not show that an order of removal is equivalent to an order of rescission.
The two proceedings are not equivalent, because rescission, unlike removal, corrects a
mistaken grant of adjustment of status by returning an alien to his original status; once
3
INA § 246, 8 U.S.C. § 1256, states:
If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 1255 or 1259 of this
title or any other provision of law to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the Attorney
General that the person was not in fact eligible for such adjustment of
status, the Attorney General shall rescind the action taken granting an
adjustment of status to such person and cancelling removal in the case of
such person if that occurred and the person shall thereupon be subject to
all provisions of this chapter to the same extent as if the adjustment of
status had not been made. Nothing in this subsection shall require the
Attorney General to rescind the alien’s status prior to commencement of
procedures to remove the alien under section 1229a of this title, and an
order of removal issued by an immigration judge shall be sufficient to
rescind the alien’s status.
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returned to his original status, the alien can re-apply for adjustment of status. See
8 U.S.C. § 1256(a) (stating if mistake was made in adjusting status, Attorney General
shall rescind action granting adjustment); Asika, 362 F.3d at 268 (holding Attorney
General has power to rescind erroneously granted adjustments of status). As a legal
consequence, an order of removal can result in a rescission of status, but that does not
mean removal and rescission must be treated equivalently under the statute.
De Guzman’s reliance on Bamidele is also misplaced because Bamidele is
distinguishable on its facts. In Bamidele, the government became aware within five years
of the alien’s adjustment of status that the alien was actually ineligible for that
adjustment. Despite knowing of that ineligibility, and knowing it within the limitations
period, the government failed to take action for six years. In this case, by contrast, the
government was unaware of De Guzman’s alleged ineligibility to adjust status until
almost ten years after he had been granted permanent residence status. Once it learned of
the ineligibility, it moved to begin the removal proceedings. When an alien, like De
Guzman, has concealed information from the government, he cannot properly ask us to
treat the five-year time limit as a bar. Therefore, the IJ was correct in distinguishing
Bamidele on the facts.
2. Effect of 2003 annulment on marriage to Miriam
De Guzman argues that the IJ erred in holding that the 2003 annulment of his
marriage to Helen did not render his 1993 marriage to Miriam valid. He maintains that
7
the annulment erased any misrepresentation because it voided his marriage to Helen ab
initio. In the event that we find that the annulment cannot be applied retroactively,
Petitioner also argues that he did not have the requisite mens rea to commit fraud.
As noted by the IJ, Article 41 of the Family Code of the Philippines provides that
“[a] marriage contracted by any person during subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present has a well-founded
belief that the absent spouse was already dead.” (A.R. at 512.) Because De Guzman
made no claim that he believed Helen was dead prior to his marrying Miriam, and he
actually returned to the Philippines to annul his marriage to Helen in 2003, the IJ and BIA
did not err in concluding that his marriage to Miriam was null and void at its inception.
De Guzman’s 2003 annulment did not remedy the misrepresentation that the IJ found he
had made to the government, because the second marriage was never legal to begin with.
Furthermore, there is substantial evidence in the record to support the IJ’s finding
that De Guzman knowingly misrepresented to the government his marital status. Intent to
deceive is not a necessary element of a violation of 8 U.S.C. § 1182(a)(6)(C)(I).
Knowledge that a representation is false is alone sufficient to establish a violation.
Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1990). Because De Guzman knew that his
marriage to Helen was neither annulled, nor ended in divorce prior to his marriage to
Miriam, there is sufficient evidence to support the conclusion that he knew his marriage
8
to Miriam was null and void, and hence to conclude that his misrepresentation was
deliberate and voluntary.
Finally, the IJ was correct in holding that, even if De Guzman’s 2003 annulment
voided his marriage to Helen ab initio, it did not change the fact that, at the time of his
entry and of his adjustment of status, he was inadmissible. He had already misrepresented
his marital status, and the misrepresentation did not evaporate when he later acquired an
annulment.
B. The Immigration Judge’s Determination that Petitioner Failed to
Establish that His Removal Would Result in Exceptional and
Extremely Unusual Hardship to his Children
De Guzman seeks review of the IJ’s decision denying his application for
cancellation of removal. He argues that the IJ’s decision that his children’s asthma was
not severe enough to constitute exceptional and extremely unusual hardship was clearly
erroneous and not based on substantial evidence, and he maintains that we have
jurisdiction to review the IJ’s decision on this point because it is a question of law.
We are not unsympathetic to De Guzman’s assertions about his family
circumstances. Nothing in our decision today should imply otherwise. Nevertheless, his
argument runs afoul of our holding in Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178-
79 (3d Cir. 2003), wherein we held that the determination of whether an applicant’s
children would suffer exceptional and extremely unusual hardship upon his removal is a
9
matter within the complete discretion of the Attorney General. Consequently, we lack
jurisdiction to review this aspect of the IJ’s decision.
III. Conclusion
For the reasons stated, we will deny the petition for review and affirm the BIA’s
order upholding the IJ’s decision.
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