Chungong v. INS ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD APONGWA CHUNGONG,
Petitioner,
v.
No. 96-2103
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-302-326)
Submitted: May 15, 1997
Decided: June 4, 1997
Before RUSSELL, HALL, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Bokwe G. Mofor, Silver Spring, Maryland, for Petitioner. Frank W.
Hunger, Assistant Attorney General, Civil Division, Donald E.
Keener, Deputy Director, Kristin A. Cabral, Senior Litigation Coun-
sel, Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Richard Apongwa Chungong, a citizen of Cameroon, entered this
country as a nonimmigrant student in February 1988. In May of 1989,
he married an American citizen and was granted conditional perma-
nent resident status by the Immigration and Naturalization Service
(INS). See 8 U.S.C.A. § 1186a(a) (West 1994 & Supp. 1997). To
remove the condition and obtain complete and lawful permanent resi-
dent status, Chungong and his wife were required to file a joint peti-
tion with the INS within approximately two years after the date he
obtained the conditional status. See 8 U.S.C.A. §§ 1186a(c)(1), (d)(2);
8 C.F.R. § 216.2(b) (1996). However, because Chungong's marriage
ended in divorce prior to the time period when a joint petition to
remove the condition from his resident status could be filed, he sought
to avoid the joint petition requirement by applying for a "hardship
waiver." See 8 U.S.C.A. § 1186a(c)(4)(B) (in order to obtain this
waiver the alien must show that his "qualifying marriage was entered
into in good faith"). The INS denied the waiver and sought deporta-
tion. At his deportation hearing, Chungong appealed the denial of his
application for a waiver. The immigration judge (IJ) denied Chun-
gong's application for the waiver and ordered deportation (with the
privilege of voluntary departure), which was upheld by the Board of
Immigration Appeals (BIA). Chungong seeks review of the BIA's
final order of deportation alleging that the Board erred in its determi-
nation that he did not meet his burden of showing that his marriage
was bona fide and in good faith. For the reasons that follow, we
affirm.
In this case, we are not asked to review the determination that
Chungong is deportable; rather, we are asked to review the denial of
the hardship waiver, part of the final order of deportation. See 8
C.F.R. § 216.5(f) (1996) (the INS's denial of the hardship waiver
itself is not appealable). This court has jurisdiction to adjudicate
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Chungong's petition for review of his final order of deportation. See
8 U.S.C. § 1105a(a) (1994);* Gandarillas-Zambrana v. BIA, 44 F.3d
1251, 1255 (4th Cir.), cert. denied, 64 U.S.L.W. 3203, 3239 (U.S.
Oct. 2, 1995) (No. 94-1720). In order to obtain a waiver under 8
U.S.C. § 1186(c)(4)(B), an alien bears the burden of proving that he
entered into the marriage in good faith. Hernandez-Patino v. INS, 831
F.2d 750, 752 (7th Cir. 1987); Matter of Mendes , 20 I & N Dec. 833
(BIA 1994); 8 C.F.R. § 216.5(a)(2) (1996). To determine whether a
marriage was entered into in good faith, the INS considers documen-
tary evidence relating to the degree of commitment by both parties to
the marital relationship, including evidence of combined financial
assets and liabilities, length of time the parties cohabited after mar-
riage, and any other relevant evidence. 8 C.F.R.§ 216.5(e)(2) (1996).
Because Congress committed to the Attorney General's discretion
whether to grant or deny a waiver under § 1186a(c)(4), we review that
decision for an abuse of discretion. See Nyonzele v. INS, 83 F.3d 975,
979 (8th Cir. 1996). Because the BIA is the highest administrative tri-
bunal, we usually review only its findings and final order, rather than
those of the IJ. See Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th
Cir. 1992). We may not reverse the BIA's factual findings unless the
evidence not only supports a contrary conclusion, but compels it. See
Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995). A
court will defer to the BIA's interpretation of a statute if it "is rational
and consistent with statute." Akindemowo v. INS, 61 F.3d 282, 285
(4th Cir. 1995) (citation omitted).
The BIA dismissed Chungong's appeal of the IJ's decision denying
his hardship waiver and finding him deportable. The BIA found that
Chungong failed to show by a preponderance of the evidence that he
married in good faith. The marriage lasted less than five months
before Chungong's wife asked him to vacate their apartment. Other
than the marriage certificate itself, Chungong submitted no evidence
of the event: no photographs, invitations, or witnesses. Also, Chun-
gong admitted that he held no joint bank account with his wife nor
credit cards. They held no property in joint title and he failed to show
_________________________________________________________________
*This section was repealed for deportation orders filed on or after Sep-
tember 30, 1996. See Pub. L. No. 104-208, Div. C, Title III, § 306(b),
110 Stat. 3009. Chungong's final deportation order was filed on June 25,
1996.
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commingling of any assets. Although both spouses worked, neither
could show that they identified the other as a beneficiary of any bene-
fit. In fact, Chungong's wife explained she did not provide her hus-
band with health insurance coverage because it "would've been extra
to have him added." Finally, Chungong provided no affidavits or tes-
timony from family members regarding his marriage. Based upon
these findings, we do not find the BIA abused its discretion in deter-
mining that Chungong failed to show that his marriage was in good
faith. See Chen Zhou Chai, 48 F.3d at 1338; 8 C.F.R. §§ 216.5(a)(2),
(e)(2). To the extent Chungong argues that the INS improperly inter-
preted its statute by denying his waiver, this claim fails. See
Akindemowo, 61 F.3d at 285.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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