Aberdeen v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2247
EVERETTA ABERDEEN, a/k/a Victoria Taylor, a/k/a Everetta
Jenkins,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 16, 2010 Decided: August 24, 2010
Before KING, DUNCAN, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Liam Ge, LIAMSLAW, Columbia, Maryland, for Petitioner. Tony
West, Assistant Attorney General, John S. Hogan, Senior
Litigation Counsel, Michael C. Heyse, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everetta Aberdeen, a native and citizen of Sierra
Leone, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s denial of her request for adjustment of
status. Finding no reversible error, we deny the petition for
review.
In her brief before this court, Aberdeen argues that
the Board erred in placing the burden of proof on her to
establish that her marriage to an American citizen was bona
fide. We review legal issues de novo, “affording appropriate
deference to the BIA’s interpretation of the INA and any
attendant regulations.” Li Fang Lin v. Mukasey, 517 F.3d 685,
691-92 (4th Cir. 2008).
It is clear that the Department of Homeland Security
(“DHS”) initially had the burden of proving that Aberdeen was
removable by clear and convincing evidence. See 8 U.S.C.
§ 1229a(c)(3)(A) (2006). The DHS easily met this burden,
however, through Aberdeen’s admissions before the immigration
judge. As noted by the Board, Aberdeen conceded that she was
removable under 8 U.S.C. § 1227(a)(1)(D)(i) (2006), as an alien
whose status was terminated after admission or adjustment of
status as a conditional permanent resident. The burden then
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shifted to Aberdeen to demonstrate her eligibility for relief
from removal. See 8 C.F.R. § 1240.8 (2010).
In order to establish a prima facie case for
adjustment of status, the relief that Aberdeen sought in this
case, an applicant must demonstrate that she is admissible to
the United States. 8 U.S.C. § 1255(a) (2006); Hussain v.
Gonzales, 477 F.3d 153, 157 (4th Cir. 2007). Pursuant to 8
U.S.C. § 1182(a)(6)(C)(i) (2006), “[a]ny alien who, by fraud or
willfully misrepresenting a material fact, seeks to procure (or
has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other
benefit provided under this chapter is inadmissible.”
Accordingly, the Board properly concluded that, in order to
establish eligibility for adjustment of status, Aberdeen carried
the burden of proving that her marriage was bona fide and that
she was not inadmissible under § 1182(a)(6)(C)(i). See Hashmi
v. Mukasey, 533 F.3d 700, 702-04 (8th Cir. 2008); Kirong v.
Mukasey, 529 F.3d 800, 803-04 (8th Cir. 2008). ∗
∗
Although Aberdeen denied that she was removable as an
alien who had engaged in marriage fraud, the denial of this
charge of removability did not relieve Aberdeen of her
obligation to separately establish her eligibility for
adjustment of status. Again, in order to demonstrate such
eligibility, Aberdeen bore the burden of establishing that she
was not inadmissible as an alien who had engaged in marriage
fraud.
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Additionally, based on a thorough review of the
record, we find no error in the Board’s conclusion that Aberdeen
failed to credibly establish the bona fides of her marriage and
was therefore ineligible for adjustment of status. We therefore
deny the petition for review for the reasons stated by the
Board. In re: Aberdeen (B.I.A. Sept. 29, 2009). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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