Iglesias, Raul E. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2910
R AUL E . IGLESIAS,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A96-166-433
____________
A RGUED M AY 8, 2008—D ECIDED A UGUST 22, 2008
____________
Before M ANION, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Petitioner Raul Eduardo Iglesias
claims the Board of Immigration Appeals (“BIA”) abused
its discretion when it denied Iglesias’s motion to reopen
his immigration case because it completely ignored the
evidence he presented regarding his marriage to an
American citizen. Although we generally lack jurisdiction
over claims that the BIA abused its discretion in denying
2 No. 07-2910
a motion to reopen, see Kucana v Mukasey, No. 07-1002,
2008 WL 2639039, at *3 (7th Cir. July 7, 2008), we conclude
that Iglesias’s allegation (if true) necessarily implies that
the BIA committed a legal error, which is something this
court can review. See Huang v. Mukasey, Nos. 07-2961 et al.,
2008 WL 2738067, at *4 (7th Cir. July 15, 2008); see also
8 U.S.C. § 1252(a)(2)(D). However, we deny Iglesias’s
petition because the alleged legal error, ignoring evidence
of his marriage, was harmless.
I. BACKGROUND
Iglesias is a 52-year-old citizen and native of Colombia.
On July 19, 2002, Iglesias came to the United States on a
non-immigrant visitor visa and was authorized to stay
until January 17, 2003. On that deadline, he applied for
political asylum, claiming he was an agricultural specialist
whose life would be in danger if he were sent back to
Colombia.
On February 25, 2003, the Department of Homeland
Security (“DHS”) issued a Notice to Appear and began
removal proceedings against Iglesias. On November 23,
2005, an immigration judge (“IJ”) held a hearing on
Iglesias’s applications for asylum, withholding of removal,
and protection under the United Nations Convention
Against Torture. The following month, the IJ denied the
requested relief and ordered Iglesias to be removed to
Colombia. Iglesias timely appealed to the BIA.
While his appeal was pending, Iglesias married Marie
Diaz, a United States citizen, on August 18, 2006. Four
No. 07-2910 3
months later, she filed an I-130 immediate relative petition
on behalf of Iglesias to allow him to remain in the coun-
try. DHS scheduled the couple to be interviewed in June
2007 on the petition.
Before the interview could occur, however, the BIA
dismissed Iglesias’s appeal on April 27, 2007. Iglesias did
not petition us for review of the BIA’s order. Instead,
Iglesias moved to reopen his removal proceedings based on
the BIA’s decision in Matter of Velarde, 23 I&N Dec. 253
(BIA 2002), which allows certain aliens to receive an
adjustment of status based on marriage to an American
citizen. Iglesias submitted numerous documents in support
of his motion to show that he was married to Marie and
that his marriage was bona fide (a requirement under
Velarde). DHS opposed Iglesias’s motion.
In a one-page decision, the BIA agreed with DHS that
Iglesias had not presented “clear and convincing” evidence
to show that his marriage was bona fide. The decision did
not mention any of the evidence that Iglesias had pre-
sented. Iglesias then filed this petition for review.
II. ANALYSIS
A. Jurisdiction exists because of an implied legal error.
Iglesias argues that the BIA abused its discretion in
denying his motion to reopen because it completely
ignored the evidence he presented, as demonstrated by the
lack of reasoned analysis in its decision. Recently, we
held that the REAL ID Act of 2005 stripped this court of
jurisdiction over “discretionary reopening decisions” made
4 No. 07-2910
by the BIA. See Kucana, 2008 WL 2639039, at *3. But Kucana
also reiterated that the REAL ID Act permits “discretionary
decisions [to] be reviewed when they entail ‘constitutional
claims or questions of law . . . .’ ” See id. (quoting 8 U.S.C.
§ 1252(a)(2)(D)). So we can review Iglesias’s petition only
if he has raised an argument that the BIA committed a
constitutional or legal error. Compare Huang, 2008 WL
2738067, at *4 (exercising jurisdiction, though ultimately
denying relief, in cases where petitioners raised argu-
ments that the BIA might have legally erred in denying
motions to reopen), with An Na Huang v. Mukasey, 525 F.3d
559, 563 (7th Cir. 2008) (declining jurisdiction over an
asylum claim where a petitioner mischaracterized a
factual finding as a legal error).
We first note that Iglesias does not phrase his arguments
in terms of “constitutional claims or questions of law”;
instead, his brief argues only that the BIA “abused its
discretion.” Iglesias submitted his briefs before we decided
Kucana, which abrogated earlier precedent indicating that
we generally had jurisdiction to review denials of motions
to reopen. See Singh v. Gonzales, 404 F.3d 1024, 1026-27 (7th
Cir. 2005) (overruled in part by Kucana). Now that Kucana
is the law, the question is whether we can review Iglesias’s
arguments even though he labeled them under the “abuse
of discretion” category.
Kucana itself suggests the answer. It implies that even
when a petitioner phrases all of his arguments in terms
of “abuse of discretion” (which is exactly what the peti-
tioner in Kucana did), we can review an argument that
necessarily implicates a claim of legal error, such as an
No. 07-2910 5
allegation that the BIA failed to exercise discretion at all by
completely ignoring an argument. See Kucana, 2008 WL
2639039, at *4 (“The Board must exercise discretion; only
when it has done so is its decision sheltered [from our
review].”). So a claim labeled as challenging an abuse of
discretion might also encompass a genuine claim of legal
error, just as a legal or constitutional claim might dis-
guise what is in reality just a factual allegation. See Vasile
v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (rejecting
petitioner’s attempt to “shoehorn” a factual claim into
the “question of law” category). Here, we must determine
whether Iglesias’s allegation that the BIA completely
ignored the evidence he presented necessarily implicates
a claim of constitutional or legal error.
Any plausible constitutional claim would be grounded
in due process. Because we have held that “a petitioner
has no liberty or property interest in obtaining purely
discretionary relief,” such as the reopening of a case,
Iglesias’s due process rights were not implicated here. See
Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see
also Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006).
Nonetheless, a claim that the BIA has completely ignored
the evidence put forth by a petitioner is an allegation of
legal error. We assumed without deciding in Kucana that
“ignoring a potentially dispositive issue is an error of
law that would allow review under [the REAL ID Act].”
Kucana, 2008 WL 2639039, at *4; see also Kebe v. Gonzales, 473
F.3d 855, 857 (7th Cir. 2007) (“[A]lthough the BIA does not
have to write an exegesis on every contention, it must
consider the issues raised, and announce its decision in
6 No. 07-2910
terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted.” (internal
quotation marks omitted)). We have since held that a
“failure to exercise discretion or to consider factors ac-
knowledged to be material to such an exercise”—such
as the “wholesale failure to consider evidence”—would
be an error of law for purposes of reviewing a motion to
reopen. See Huang, 2008 WL 2639039, at *1 (second quota-
tion from Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir.
2008)). And we fail to see how the BIA can make a rea-
soned decision denying a motion to reopen if it com-
pletely ignores the evidence that a petitioner presents. See
8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented
at the former hearing . . . .”). So we conclude that Iglesias’s
allegation that the BIA completely ignored the evidence
he presented is a good faith claim of legal error that we
can review. See Kucana, 2008 WL 2639039, at *4 (noting
that the Board has “an obligation to consider every argu-
ment made to it”).
B. The alleged legal error, ignoring evidence, was
harmless.
Turning to the merits of Iglesias’s claim, the analysis
section of the BIA’s decision states in its entirety:
In its opposition, the DHS provides that the respondent
has failed to submit sufficient evidence to indicate a
strong likelihood that his marriage is bona fide. In
No. 07-2910 7
particular, the DHS argues that the respondent has not
submitted an affidavit prepared by himself, evidence
of a joint insurance policy, copies of joint billing
statements, copies of joint bank statements, or copies
of joint credit card bills. We agree that the respondent
has not presented “clear and convincing” evidence to
establish that the marriage is bona fide. Accordingly,
the respondent’s motion is denied.
While restating the evidentiary deficiencies highlighted
by DHS, the BIA’s decision neglects to even mention any
of the substantial evidence that Iglesias produced, which
included a marriage certificate and wedding pictures;
documents relating to Iglesias’s I-130 petition; a cursory
letter from a personal banker indicating that Iglesias
shared an account with Marie; Illinois drivers’ licenses
and ID cards for both Iglesias and Marie listing the
same home address; a receipt from the Social Security
Administration indicating Marie had applied for a new
Social Security card under her married name; and one-
page form affidavits from a friend, Marie’s mother, and
Marie. Had the BIA at least mentioned this evidence, we
could have some confidence that these materials had been
considered. Unfortunately, the brevity of the decision
leaves us with the impression that the BIA committed
legal error by completely ignoring this evidence. Cf.
Kucana, 2008 WL 2639039, at *4 (“Sometimes an opinion
addressing one subject . . . while not mentioning
another . . . may imply that the latter has been overlooked
rather than decided.”).
The BIA is saved, however, because most of Iglesias’s
documentary evidence only goes to show that he is mar-
8 No. 07-2910
ried, not that his marriage is bona fide, as required under
Velarde. See, e.g., Ilic-Lee v. Mukasey, 507 F.3d 1044, 1051 (6th
Cir. 2007) (rental agreement, cable and energy bills, a joint
bank statement, and an affidavit from a petitioner’s
spouse constituted “minimal and insufficient” evidence
that, “while at best . . . might demonstrate a legal mar-
riage,” does not suggest a bona fide one); Malhi v. INS, 336
F.3d 989, 994 (9th Cir. 2003) (“[T]o qualify for the bona
fide marriage exemption, an applicant must offer evid-
ence that is probative of the motivation for marriage, not
just the bare fact of getting married.”). And although
Iglesias submitted a brief letter from his personal banker,
the BIA would have been within its discretion in con-
cluding that this evidence was not enough to show that
the couple is financially hitched. See 8 C.F.R.
§ 204.2(a)(1)(3)(iii)(B) (providing non-exclusive examples
of documents a petitioner may submit to show a mar-
riage is bona fide, including “documentation showing
commingling of financial resources”).
Moreover, the single-page affidavits that Iglesias pre-
sented contained very little information from which to
conclude that the marriage is bona fide. For example, there
is only one line in the friend’s affidavit that could support
a finding that the marriage is bona fide: “That they
[Iglesias and Marie] are a happily married couple who
spend all their time together and that their families ap-
proved of the marriage.” This line was not written by
the friend but is part of the form affidavit (and is common
to all three affidavits here). The BIA would have been
within its discretion in concluding that the affidavit was
not “clear and convincing” evidence that the marriage is
No. 07-2910 9
bona fide. Cf. Fu Xing Yu v. Gonzales, 213 Fed. Appx. 72, 74
(2d Cir. 2007) (unpublished) (“The BIA was reasonable
in its determination that [a petitioner’s] and her
husband’s mere attestations in their affidavits that their
marriage was bona fide were insufficient to show, by clear
and convincing evidence, the bona fide nature of their
marriage.”); see also 8 C.F.R. § 204.2(a)(1)(3)(iii)(B) (“The
affidavit must contain complete information and details
explaining how the person acquired his or her knowl-
edge of the marriage.”).
Had Iglesias’s evidence been more persuasive, we might
have needed to remand to ensure that the BIA had consid-
ered this evidence in its decision. But because the BIA
could have reasonably concluded that Iglesias’s evidence
was not “clear and convincing” proof of a bona fide
marriage, we need not remand because the alleged legal
error was harmless. See Tariq v. Keisler, 505 F.3d 650, 657
(7th Cir. 2007).
III. CONCLUSION
The petition for review is D ENIED.
8-22-08