Gerardo Hernandez Lara v. Loretta E. Lynch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3305
GERARDO HERNANDEZ LARA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A041 950 945
____________________
ARGUED APRIL 28, 2015 — DECIDED JUNE 18, 2015
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Gerardo Hernandez Lara, a citizen
of Mexico, married a U.S. citizen in 1988. Hernandez (the name
he uses) gained conditional permanent residency based on that
marriage but never completed the process necessary to obtain
unconditional permanent residency. When placed in removal
proceedings in 2008—ten years after divorcing his wife—he
sought permanent residency through a discretionary waiver
2 No. 14-3305
available to petitioners who can show that they had entered a
failed marriage in good faith. Hernandez testified at the re-
moval hearing that he had entered his marriage in good faith
and the government offered no evidence to the contrary. With-
out making a credibility finding, the immigration judge deter-
mined that Hernandez’s marriage was not bona fide and or-
dered him removed. The Board of Immigration Appeals evalu-
ated Hernandez’s appeal on the assumption that everything he
said about his marriage was credible and yet went on to con-
clude that he had not met his burden of proving by a prepon-
derance of the evidence that his marriage was bona fide. Given
Hernandez’s testimony that he had married for love, not im-
migration benefits—and the government’s lack of evidence—
the Board’s conclusion implies that it demanded from
Hernandez more proof than necessary to satisfy a preponder-
ance standard. That reasoning constitutes a legal error warrant-
ing remand, and thus we grant Hernandez’s petition for re-
view.
I. BACKGROUND
Hernandez did not obtain conditional residency during his
marriage because he and his wife, Diana Winger, never
showed up for the joint interview that is generally a prerequi-
site to establishing the bona fides of a marriage and removing
the conditions on residency. See 8 U.S.C. § 1186a(c), (d);
8 C.F.R. § 216.4(a). In 1990, Hernandez and Winger filed a joint
petition to make Hernandez’ residency status permanent, and
the required joint interview was scheduled for December 1990.
(The joint petition, called a Form I-751, generally must be filed
within the 90-day period before the second anniversary of the
alien’s obtaining conditional permanent residency.
8 U.S.C. § 1186a(d)(2); 8 C.F.R. § 216.4(a)(1).) Winger did not
No. 14-3305 3
appear for that interview; Hernandez told immigration offi-
cials in a sworn statement that Winger had left him a month
and a half earlier because she was angry at him for working
two jobs and coming home late, and that he had not seen her
since. At Hernandez’s request the joint interview was resched-
uled for November 1992, see 8 C.F.R. § 216.4(b)(3), but this time
neither spouse showed. Hernandez mailed a letter explaining
that he could not get to the interview because he was in jail
(apparently for driving under the influence) but gave no ex-
planation for Winger’s absence.
That was how things stood for 16 years until Hernandez
stirred the hornet’s nest by filing a Form I-751 in 2008 with
USCIS requesting a discretionary waiver of the joint-petition
requirements (including the joint interview). An alien may ob-
tain this waiver—and with it, unconditional permanent resi-
dency—if he can demonstrate that he entered a failed marriage
in good faith and that he is not at fault for failing to satisfy the
joint-petition requirements. See 8 U.S.C. § 1186a(c)(4)(B);
8 C.F.R. § 216.5(a)(1)(ii). As evidence that his marriage was
bona fide, Hernandez submitted joint tax returns for 1988 and
1989, recent accounts from his friends recalling that they had
seen the couple together, a “to whom it may concern” letter
apparently signed by Winger and dated in 1991 announcing
that the couple had “reconciled” their differences and were liv-
ing together again, a letter dated in 1994 apparently signed by
Winger stating that she was jealous because Hernandez was
spending too much time with his friends, and his sworn state-
ment from December 1990 explaining that Winger had left him
and that he did not know where she was.
In early 2009, after interviewing Hernandez, USCIS denied
his request for a waiver on the ground that he had “failed to
4 No. 14-3305
establish or provide documentation” that his marriage was en-
tered in good faith. The agency relied primarily on
Hernandez’s “lack of evidence” but also noted that the couple
was married in a civil ceremony attended by only one witness,
that Hernandez’s sworn statement indicated that spending
time with his wife was not a priority for him, that he did not
know where his wife was when she failed to appear for the
1990 interview, and that the couple had no children. The agen-
cy terminated Hernandez’s status as a conditional permanent
resident, and he was issued a Notice to Appear charging him
with removability. See 8 U.S.C. § 1227(a)(1)(D)(i).
Hernandez conceded removability through his attorney at
an April 2010 hearing and renewed his request for a discretion-
ary waiver of the joint-petition requirements. In addition to the
materials previously supplied to USCIS, he submitted his and
Winger’s birth certificates; his driver’s license; the couple’s
marriage certificate, divorce decree, and marital settlement
agreement; records from the IRS confirming that the couple
had filed joint tax returns in 1988 and 1989; records of his crim-
inal history (mostly DUI charges) showing that his last run-in
with the law was in 2000; and his tax returns for 1998 to 2011.
At a 2013 hearing before the IJ, Hernandez testified through
a translator that he had met Winger in 1986 at a bar in Delavan,
Wisconsin, and that, although he spoke little English and she
spoke no Spanish, they began dating a week or two later. They
continued seeing each other for the next year and a half and
eventually moved in together. Hernandez said that Winger had
proposed to him and they got married in January 1988, after
living together for about two months. When asked why he had
married Winger, Hernandez answered that he “loved her a
lot.” Specifically, he said, he liked “[h]er body,” “[h]er face, the
No. 14-3305 5
way she dressed,” and her housekeeping skills. He testified
that during the marriage he was working hard to raise money
for his parents in Mexico, but he did not immediately tell his
mother of the marriage because, he explained, she did not have
a telephone.
Hernandez said that his relationship with Winger had been
stormy. He acknowledged that his disinterest in learning
English had angered Winger and created stress. He and
Winger liked going to restaurants and stores together, he said,
but he did not have a lot of time for these activities because he
was working two jobs. He recounted that, when Winger had
disappeared before their first joint interview, he tried finding
her by contacting her friends but was unsuccessful because
none of them spoke Spanish. After this first falling-out, they
had an on-again, off-again relationship, which included their
living together for a few months in 1994 or 1995. Although
their relationship was contentious, they did not divorce until
1998, Hernandez said, because he “had hopes of … getting
back together with her.” When asked whether he had married
Winger to get residency, he answered: “No. Never.”
When questioned about his drinking and history of DUIs,
Hernandez testified that he had stopped drinking in 1999 or
2000 (the last time he was in jail). He quit drinking, he said, be-
cause his attending church and being in a relationship with a
Mexican woman who had children “change[d] his life.”
Hernandez attempted to explain the dearth of documentary
evidence related to his marriage. He said he had tried obtain-
ing records showing that he and Winger handled their finances
jointly and shared a post office box but that the records were
no longer available. And there were no photographs of his
wedding, he explained, because they were stolen from his
6 No. 14-3305
apartment while he was in jail along with the money (five to
six hundred dollars) that he kept in a folder with the photos.
Hernandez said that he recently had tried finding Winger and
even hired a private investigator, but that his efforts were un-
successful.
A friend of Hernandez’s also testified but did not provide
much information. He said that he knew about the marriage
and had seen the couple in stores around town. He acknowl-
edged that Hernandez had not talked with him about the mar-
riage but said he had been to the couple’s home with them and
knew they lived together.
The government submitted no evidence. Counsel for
Hernandez argued during closing that—unless the IJ found
Hernandez not credible—the evidence was sufficient to prove
the bona fides of the marriage. Any gaps in Hernandez’s evi-
dence, counsel maintained, were attributable to the 25 years
that had passed since he and Winger had married. The gov-
ernment countered that Hernandez’s request for a waiver
should be denied because, the government maintained, there
was “little or no evidence” that the marriage was valid.
The IJ denied Hernandez’s petition for a waiver and or-
dered him removed to Mexico. Hernandez had not met his
burden to prove by a preponderance that his marriage was bo-
na fide, the IJ reasoned, because his “evidence was not suffi-
ciently detailed and, at times, proved inconsistent” with doc-
uments he had submitted. Among the handful of inconsisten-
cies identified by the IJ was Hernandez’s testimony “that the
marriage broke up because of his refusal to go out partying
and drinking with his wife,” which the IJ thought was at odds
with Winger’s assertion in the 1994 letter that she was jealous
that Hernandez was spending time with his male friends. The
No. 14-3305 7
IJ also opined that Hernandez’s testimony that he had lost con-
tact with Winger in 1995 and currently could not find her was
inconsistent with Winger’s appearing in divorce court in 1998.
The IJ emphasized throughout her analysis that Hernandez
could not meet his burden of proof because, the IJ said, his tes-
timony and other evidence were “vague” and lacking in “de-
tail.” The IJ made no express credibility finding, however, ex-
cept for the determination that Hernandez had “credibly testi-
fied that he no longer drinks” and that he had reformed his
life.
Hernandez appealed the IJ’s decision, arguing (among oth-
er things) that the IJ had “failed to apply the appropriate bur-
den of proof” when denying his waiver petition. The Board re-
jected this argument and the rest of Hernandez’s challenges.
Recognizing that the IJ had not made an explicit credibility
finding, the Board “assume[d] for the purposes of the appeal”
that both Hernandez and the friend who testified were credi-
ble. But, the Board concluded, “even assuming the credibility
of the respondent and his witness,” the IJ had correctly deter-
mined that Hernandez “did not meet his burden of proving by
a preponderance of the evidence that he entered his marriage
in good faith.” This was so, the Board explained, because
Hernandez had “provided little detail” of his relationship with
Winger and because there was “a paucity of record evidence
supporting the respondent’s claim that he entered his marriage
in good faith.”
II. ANALYSIS
In his petition for review, Hernandez contends that the
Board held him to a burden of proof more onerous than the
preponderance standard that an alien must satisfy to establish
8 No. 14-3305
that a failed marriage was bona fide. A denial of a good-faith
marriage waiver is a discretionary decision and thus generally
unreviewable, see 8 U.S.C. § 1252(a)(2)(B)(ii), Bouras v. Holder,
779 F.3d 665, 670 (7th Cir. 2015); Boadi v. Holder, 706 F.3d 854,
857 (7th Cir. 2013), but we have jurisdiction under
§ 1252(a)(2)(D) to consider Hernandez’s argument because he
claims that the Board applied the wrong legal standard.
See Boadi, 706 F.3d at 857; Avila-Ramirez v. Holder, 764 F.3d 717,
722 (7th Cir. 2014); Cruz-Moyaho v. Holder, 703 F.3d 991, 997
(7th Cir. 2012).
We agree that the Board applied too high a burden of proof
and that this error warrants remand. The Board concluded
that, even if Hernandez testified truthfully about his marriage,
he had not met his burden of proving by a preponderance that
the marriage was bona fide because, the Board explained, he
“provided little detail of his courtship of his wife or their wed-
ding” and there was “a paucity of record evidence.” The
Board’s analysis misapprehends the preponderance standard.
Hernandez testified unequivocally that he did not marry
Winger to obtain residency but because he “loved her.” If, as
the Board assumed, Hernandez testified truthfully, then this
testimony alone is enough to prove that his marriage to Winger
was more likely than not bona fide. See Lopez-Esparza v. Holder,
770 F.3d 606, 608–09 (7th Cir. 2014) (granting petition and re-
manding on ground that IJ applied incorrect burden of proof
and observing that, when preponderance standard governs,
“[s]ome evidence would seem to preponderate over no evi-
dence”); Am. Grain Trimmers, Inc. v. Office of Workers’ Comp.
Programs, 181 F.3d 810, 817–18 (7th Cir. 1999) (en banc) (ex-
plaining that, under preponderance-of-evidence standard,
“[o]ne compelling witness … can overwhelm ten contrary wit-
nesses or a raft of papers, if the trier of fact chooses to believe
No. 14-3305 9
the one witness and to disbelieve the ten”); United States v.
Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993) (stating, in
context of criminal sentencing, that testimony of arguably
biased witness found credible by judge is sufficient to support
finding of fact by preponderance); United States ex rel. Wandick
v. Chrans, 869 F.2d 1084, 1089 (7th Cir. 1989) (observing that
“[c]redible testimony of one identification witness is sufficient
to support a conviction” under more onerous beyond-a-
reasonable-doubt standard); United States v. Noe, 411 F.3d 878,
889 (8th Cir. 2005) (“Credible and substantial testimony by an
accomplice is sufficient to support a conviction, and can prove
firearm possession under the preponderance of the evidence
standard.” (citations and internal quotation marks omitted)).
Because the Board elected to credit all of Hernandez’s testimo-
ny—including his assurance that love, not residency, motivat-
ed him to accept Winger’s proposal—the only conclusion it
could then logically reach was that Hernandez’s marriage was
bona fide. The Board’s failure to reach that conclusion is a legal
error. See Lopez-Esparza, 770 F.3d at 609.
The government suggests that Hernandez never argued
that the Board failed to correctly apply the preponderance
standard and therefore waived the argument. We disagree with
this contention. Hernandez repeats throughout the opening
brief that the Board failed to correctly apply the preponderance
standard. And again in his reply brief, Hernandez clearly states
that “[n]either the Board nor the Immigration Judge made a
finding that any of Mr. Hernandez’s evidence or testimony was
not credible” and contends that in the absence of such a find-
ing, he met his burden of proving the bona fides of his mar-
riage by a preponderance of the evidence. These statements
were sufficient to preserve the argument. See United States
ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 837 & n.20
10 No. 14-3305
(7th Cir. 2011) (noting that while arguments made for first time
in reply brief are generally treated as waived, it does not follow
that arguments that are better developed in reply brief are
waived); accord Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d
906, 913 & n.9 (7th Cir. 2011).
One could argue, perhaps, that the IJ implicitly found
Hernandez not credible and that the Board’s opinion should be
read together with the IJ’s decision to conclude that the proper
evidentiary standard was applied when denying Hernandez’s
waiver application. But the IJ’s opinion is opaque with regard
to whether the IJ found Hernandez credible. And in any event,
because the Board evaluated this appeal on the assumption
that Hernandez was credible, our decision cannot rest on the
IJ’s supposed credibility findings. See Chen v. Holder, 578 F.3d
515, 517 (7th Cir. 2009); Zheng v. Gonzales, 409 F.3d 804, 809
(7th Cir. 2005); Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005).
The government’s lawyer also contended at oral argument
that we should deny Hernandez’s petition because, the lawyer
asserted, the REAL ID Act allows “that the applicant might be
credible and still not meet their burden of proof.” We assume
that the lawyer was referring to the fact that an IJ may demand
corroborating evidence even from an alien whose testimony
the IJ finds credible. See 8 U.S.C. § 1229a(c)(4)(B); Liu v. Holder,
692 F.3d 848, 853–54 (7th Cir. 2012); Abraham v. Holder, 647 F.3d
626, 633 (7th Cir. 2011). But this provision of the REAL ID Act
is irrelevant here because neither the IJ’s nor the Board’s ruling
rests on a determination that Hernandez had failed to provide
available corroborating evidence. See Tandia v. Gonzales, 487
F.3d 1048, 1054–55 (7th Cir. 2007). Thus, by invoking the
REAL ID Act, the government is once again violating the
No. 14-3305 11
Chenery doctrine in its defense of a Board ruling, see SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943) (agency may not defend
administrative decision on new ground not set forth in its orig-
inal decision), despite our admonishments that flouting the
doctrine is obstinate and invites sanctions, see Liu v. Holder,
718 F.3d 706, 709–10 (7th Cir. 2013); Chen v. Holder, 715 F.3d
207, 210 (7th Cir. 2013).
Hernandez’s remaining arguments are frivolous, meriting
only brief discussion. He contends that he was prejudiced by
the immigration authorities’ failure to deny the Form I-751 he
filed jointly with Winger because, he says, had the authorities
denied that petition, it would have been the immigration au-
thorities’ burden under 8 U.S.C. § 1186a(c)(3)(D) to establish
that his marriage was not bona fide. But this subsection applies
only when an alien’s conditional residency is terminated after
the alien files the petition and appears for a joint interview.
See id. § 1186a(c)(3)(A), (C), (D). Because Hernandez and
Winger never appeared for the joint interview, any termination
of his status would have been under § 1186a(c)(2), and the bur-
den of proof would have fallen not on the Attorney General but
on Hernandez. See id. § 1186a(c)(2)(B).
Hernandez also maintains that, had his conditional residen-
cy been terminated earlier, he would have had more evidence
of his marriage to Winger. But he points to no statute or regula-
tion that was violated when the immigration authorities de-
clined to terminate his status prior to his petitioning for a
waiver of the joint-filing requirements. Nor does he identify
any authority for the proposition that an alien can sit on his
hands for years before seeking an immigration benefit and then
blame the government for his inability to gather evidence be-
cause of the passage of time. Hernandez would have borne the
12 No. 14-3305
same burden of proof under any of the scenarios he identifies,
so he had every incentive to gather pertinent evidence when he
first filed the joint petition.
Hernandez next contends that the Board ignored “key
pieces of evidence,” but the only evidence he points to is a let-
ter he wrote in 1995. He asserts that the Board’s failure to dis-
cuss the letter prejudiced him because, he says, the letter pro-
vides the details of his courtship that the Board said were lack-
ing. But the letter is cumulative of—and no more detailed
than—his testimony, and thus we do not see how the Board’s
failure to mention it prejudiced Hernandez. He also asserts
that his “case presents a question of law as to what the appro-
priate interpretation of the phrase ‘entered into in good faith’
entails,” but he does not elaborate on what this “question of
law” is.
III. CONCLUSION
Accordingly, we GRANT the petition for review and
REMAND the case to the Board for further proceedings.