Oropeza-Wong v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YSIDRO ALBERTO OROPEZA-WONG, 
Petitioner, No. 03-71446
v.
 Agency No.
A72-714-990
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 6, 2004—Seattle, Washington
Filed May 10, 2005
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge D.W. Nelson
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
5101
5104 OROPEZA-WONG v. GONZALES
COUNSEL
Adolfo Ojeda-Casimiro, Salazar Law Offices, Seattle, Wash-
ington, for the petitioner.
Susan K. Houser, U.S. Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the
respondent.
OROPEZA-WONG v. GONZALES 5105
OPINION
D.W. NELSON, Senior Circuit Judge:
Ysidro Oropeza-Wong (“Oropeza”), a Mexican national,
petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) which (1) denied him a statutory waiver of
the joint filing requirement for removal of the conditional
basis of his permanent resident status on the ground that he
entered into his marriage to U.S. citizen Melissa Renteria1 in
bad faith, 8 U.S.C. § 1186a(c)(4)(B), (2) ordered him
removed on the basis of marriage fraud, 8 U.S.C.
§ 1227(a)(1)(G)(i), and (3) denied his request for voluntary
departure, 8 U.S.C. § 1229c.2 Oropeza contends that he is
entitled to have the conditional basis of his permanent resi-
dent status lifted because, although the marriage was dis-
solved within two years, he entered into it in good faith. He
offers no separate argument with respect to the order of
removal, but asserts that it was an abuse of discretion to deny
him voluntary departure. The government contends that we do
not have jurisdiction to entertain Oropeza’s claims. We con-
clude that while we lack jurisdiction over Oropeza’s voluntary
departure claim, we retain jurisdiction over his challenge to
the order of removal and to his underlying claim that, because
his marriage was entered into in good faith, he is entitled to
a statutory waiver that would result in his receiving perma-
nent resident status. We further conclude, however, that the
BIA’s rejection of that underlying claim is supported by sub-
stantial evidence. We therefore dismiss the petition in part and
deny it in part.
1
Although Renteria took her husband’s name after the marriage, we
refer to her as “Renteria” throughout to distinguish her from her now for-
mer husband, Oropeza.
2
All subsequent references to code sections are to Title 8 unless specifi-
cally noted.
5106 OROPEZA-WONG v. GONZALES
I. Factual and Procedural Background
Oropeza met Renteria in January 1993 when both worked
at the same company. He testified that after dating for about
one year, the two were married in a civil ceremony in Mount
Vernon, Washington, on April 14, 1994. According to
Oropeza, following their marriage, he and Renteria lived with
her family until November 1994, when they were able to
move into an apartment of their own. He added that in Janu-
ary 1995 he left Washington to take a temporary job in
Alaska, where he spent three to five weeks. Oropeza stated
that in May 1995, he confronted Renteria with his suspicion
that she was being unfaithful to him, and that, after Renteria
suggested they divorce, the two separated in June 1995. The
marriage ended in divorce on November 27, 1995, nineteen
months after it began.
The INS granted Oropeza conditional permanent resident
status on September 15, 1994, and terminated that status on
September 15, 1996. On August 16, 1996, Oropeza filed a
Petition to Remove the Conditions on Residence (hereinafter
“Form I-751”) with the INS. Because, under the statute, an
alien is not permitted to file the requisite joint petition with
an ex-spouse, Oropeza applied for a statutory waiver of the
joint filing and interview requirements on the ground that his
was a good faith marriage that had been terminated by
divorce. See § 1186a(c)(4)(B). Oropeza’s application was
denied on June 3, 1998. On June 10, 1998, he was served with
a Notice to Appear, stating that his conditional resident status
had been terminated and charging him with being subject to
removal for marriage fraud under § 1227(a)(1)(G)(i).
At his removal hearing, Oropeza sought review of the
denial of his statutory waiver and a determination that he was
entitled to permanent resident status and was therefore not
removable. He was the sole witness to testify. The govern-
ment presented no witnesses. In addition to testifying,
Oropeza provided documentary support to show that he
OROPEZA-WONG v. GONZALES 5107
entered his marriage in good faith, including: a jointly filed
tax return; a lease for an apartment dated November 1994;
eight canceled checks from a joint account; telephone bills
listing Oropeza and Renteria as residing at the same address;
an application for life insurance; and an application for vehi-
cle title. Some of these documents were unsigned by Oropeza
and Renteria, including the lease; there was no evidence that
others, such as the applications for life insurance or automo-
bile title, had been filed. Oropeza also provided a letter from
a nurse who had treated him over an extended period of time
stating that his wife had accompanied him on most office vis-
its, as well as letters that Renteria had written to him during
periods of separation.
The hearing also addressed aspects of Oropeza’s life before
and after his marriage to Renteria that raised questions as to
his credibility, including his failure to list his children on
forms filed with the INS or to mention them in an interview
with immigration officials, and his relationship with his cur-
rent wife, Edith Solis (“Solis”). Prior to his marriage to Ren-
teria, Oropeza fathered two children in Mexico: Imelda, born
in 1984, and Alberto, born to Oropeza and Solis in 1987. The
government questioned Oropeza about the failure to list his
children both on the petition that Renteria filed on his behalf
and on the first Form I-751 that he, himself, filed. Oropeza
stated that Renteria knew about his children but chose not to
list them and that the attorneys who had filled out his I-751
had omitted the children due to an error. Oropeza also testi-
fied that he did not mention his children during his interview
with the INS examiner because he thought that they were not
relevant to the immigration decision as they were not U.S. cit-
izens.
The Immigration Judge (“IJ”) also questioned Oropeza
about INS records of a 1989 detention in Anchorage, Alaska,
prior to his marriage to Renteria, focusing on the statements
on the forms that indicated that Solis, whom Oropeza was
apprehended with, was his wife. Oropeza responded that he
5108 OROPEZA-WONG v. GONZALES
was not married to Solis at the time, and that, although Solis
would sometimes refer to him as her “husband,” she was his
“girlfriend.” After his separation from Renteria, Oropeza
returned to Mexico and resumed a relationship with Solis.
They underwent a marriage ceremony in Alaska on April 4,
1997.
In a written opinion, the IJ found that Oropeza was not a
credible witness because of his failure to list his children on
the INS forms and mention them during his interview, the
inconsistencies in his testimony about Solis, and his demeanor
during cross-examination. The IJ also stated that Oropeza’s
decision to return to Mexico after his divorce to seek out Solis
suggested that “respondent appeared to have married Melissa
[Renteria] solely for his papers and then he was going to
return to Edith Solis.” The IJ commented on Oropeza’s depar-
ture for Alaska within eight months of his marriage to Ren-
teria, and on the lack of any corroborating testimony about the
bona fides of the marriage by family or friends. She con-
cluded that the marriage had not been entered into in good
faith and denied Oropeza the statutory waiver. She further
found that the INS had established Oropeza’s removability for
marriage fraud by “clear, convincing, and unequivocal evi-
dence” and denied his request for voluntary departure.
The BIA affirmed the IJ’s decision in a written opinion
dated March 5, 2003. The BIA found that the IJ’s adverse
credibility determination was supported by the record, relying
specifically on the inconsistencies between Oropeza’s 1989
statements to immigration officials about his marital status
with Solis, his failure to disclose the existence of his children
on both his first Form I-751 and during his interview with an
INS official, and his inconsistent and weak testimony before
the IJ.
In its evaluation of the bona fides of Oropeza and Ren-
teria’s marriage, the BIA emphasized Oropeza’s failure to
explain the context of the undated letters from Renteria, par-
OROPEZA-WONG v. GONZALES 5109
ticularly given the brevity of the time that, according to
Oropeza, he spent in Alaska. The BIA also noted that the doc-
umentation submitted at the hearing revealed three addresses
for the couple during the course of their marriage, while
Oropeza’s testimony only mentioned two residences. The BIA
concluded that the documentation did not establish that the
couple “actually lived together or shared a life as husband and
wife.” Specifically, the BIA pointed to the facts that the lease
agreement was unexecuted and that the cancelled checks did
not include a rent payment.
The BIA stated that the evidence “consist[ed] mainly of
incredible and meager testimony . . . [and] unexplained evi-
dentiary gaps . . . .” It therefore concluded that Oropeza did
not provide sufficient evidence to demonstrate that he entered
his marriage in good faith and affirmed the denial of the statu-
tory waiver and the order of removal for marriage fraud. The
BIA also affirmed the IJ’s decision not to grant Oropeza vol-
untary departure.
II. Standard of Review
We review de novo the jurisdictional limitations of the Ille-
gal Immigration Reform and Immigrant Responsibility Act
(IIRIRA). Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.
2004). Where the BIA conducts a de novo review and issues
its own decision, we review the BIA’s decision and not that
of the IJ. Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.
2001). We review the BIA’s legal conclusions de novo and its
factual determinations for substantial evidence. Hamoui v.
Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004).
III. Discussion
A. Jurisdiction
[1] The parties disagree on two basic threshold jurisdic-
tional questions. The first is easily answered: Do we have
5110 OROPEZA-WONG v. GONZALES
jurisdiction over Oropeza’s voluntary departure claim? We do
not. § 1229c(f) (“No court shall have jurisdiction over an
appeal from denial of a request for an order of voluntary
departure . . . .”); see Tovar-Landin v. Ashcroft, 361 F.3d
1164, 1166 (9th Cir. 2004). Accordingly, we do not review
the BIA’s decision to deny voluntary departure.
[2] The other jurisdictional question is not as simple, as this
circuit has not yet considered the question: May we review a
decision of the BIA denying a statutory waiver under
§ 1186a(c)(4)(B)? The government contends that § 1252(a)(2)
(B)(ii), which precludes judicial review of “any . . . decision
or action of the Attorney General the authority for which is
specified . . . to be in the discretion of the Attorney General,”
applies to the BIA’s decision to deny Oropeza a statutory
waiver because § 1186a(c)(4) contains two references to the
Attorney General’s discretion.3 First, the government argues
3
The full text of § 1186a(c)(4) provides:
The Attorney General, in the Attorney General’s discretion,
may remove the conditional basis of the permanent resident sta-
tus for an alien who fails to meet the requirements of paragraph
(1) [for joint filing] if the alien demonstrates that —
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by
the alien spouse, but the qualifying marriage has been
terminated (other than through the death of the spouse)
and the alien was not at fault in failing to meet the
requirements of paragraph (1) [for joint filing], or
(C) the qualifying marriage was entered into in good faith by
the alien spouse and during the marriage the alien spouse
or child was battered by or was the subject of extreme
cruelty perpetrated by his or her spouse or citizen or per-
manent resident parent and the alien was not at fault in
failing to meet the requirements of paragraph (1) [for
joint filing].
In determining extreme hardship, the Attorney General shall con-
sider circumstances occurring only during the period that the
OROPEZA-WONG v. GONZALES 5111
that the statement in the first sentence of § 1186a(c)(4) that
“[t]he Attorney General, in the Attorney General’s discretion,
may remove the conditional basis . . . .” generally bars our
exercise of jurisdiction over all claims of statutory waivers
provided for by that section. Second, the government argues
that the statement in the section’s final paragraph that “[t]he
determination of what evidence is credible and the weight to
be given that evidence shall be within the sole discretion of
the Attorney General” specifically bars our review of all
adverse credibility determinations made in connection with
applications for such waivers.
[3] Because it is well established in this circuit that
§ 1252(a)(2)(B)(ii) “applies only to acts over which a statute
gives the Attorney General pure discretion unguided by legal
standards or statutory guidelines,” our jurisdiction depends on
the nature of the determinations the BIA makes under
§ 1186a(c)(4). Medina-Morales v. Ashcroft, 371 F.3d 520,
528 (9th Cir. 2004). For a statutory provision to strip this
court of jurisdiction under § 1252(a)(2)(B)(ii), the provision
must specify that “the right or power to act is entirely within
[the Attorney General’s] judgment or conscience.” Spencer
Enters., Inc. v. United States, 345 F.3d 683, 690 (9th Cir.
2003). We hold that determinations made with respect to stat-
utory waivers under § 1186a(c)(4) are not purely discretionary
and are therefore generally subject to review. Furthermore, we
hold that the statutory history of that section demonstrates
alien was admitted for permanent residence on a conditional
basis. In acting on applications under this paragraph, the Attorney
General shall consider any credible evidence relevant to the
application. The determination of what evidence is credible and
the weight to be given that evidence shall be within the sole dis-
cretion of the Attorney General. The Attorney General shall, by
regulation, establish measures to protect the confidentiality of
information concerning any abused alien spouse or child, includ-
ing information regarding the whereabouts of such spouse or
child.
5112 OROPEZA-WONG v. GONZALES
unequivocally that Congress did not intend to strip courts of
jurisdiction to review adverse credibility determinations in
particular.
[4] To understand the nature of the statutory waivers under
§ 1186a(c)(4), a brief introduction to the section as a whole is
useful. Section 1186a governs the process by which an alien
who marries a U.S. citizen obtains permanent residence status
on a conditional basis by virtue of that marriage, and the pro-
cedures by which an alien may have the conditional basis of
that status removed. Under this section, an alien may become
a permanent resident after two years by jointly filing with the
alien’s citizen spouse a petition for removal of the conditional
basis. § 1186a(c)(1). When (1) joint filing is no longer possi-
ble under the statute because of a judicial termination of the
marriage, (2) such filing is impractical because the citizen-
spouse is a domestic abuser, or (3) removal of the alien would
create extreme hardship, the alien may seek a statutory waiver
of the joint filing requirement. § 1186a(c)(4). The first two
exceptions apply, however, only if the marriage was entered
into in good faith. Because his marriage terminated in dissolu-
tion less than two years after it began, Oropeza requested such
a waiver and contended that his was a good faith marriage.4
The government contends that the first sentence of the
statute bars review of all determinations made under
§ 1186a(c)(4). Our decision is governed by our prior holdings:
unless the disputed determination is purely discretionary—
unless there are no questions of fact or law at issue—judicial
review is not precluded. See Spencer Enters., 345 F.3d at 690
(holding that under § 1252(a)(2)(B)(ii) we retain jurisdiction
4
Although § 1186a(c)(4) is entitled “Hardship Waiver,” only the first of
the three subsections relates to a “hardship” that would result from
removal. The others relate to good faith marriages ending in dissolution
and to battered spouses, respectively. The three subsections provide
entirely different grounds for excusing compliance with the requirement
of § 1186a(c)(1) that the petition must be jointly signed and that the
spouse of the applicant must appear for a personal interview.
OROPEZA-WONG v. GONZALES 5113
to review determinations of the Attorney General unless the
they are “pure[ly] discretion[ary]” or “entirely within his [ ]
judgment”); see also Hernandez v. Ashcroft, 345 F.3d 824,
833-34 (9th Cir. 2003) (holding that a determination of
whether an alien suffered “extreme cruelty” is a reviewable
legal and factual determination).
[5] Petitions for statutory waivers under § 1186a(c)(4)(B)
on the basis of a good faith marriage involve legal and factual
questions that are not subject to the pure discretion of the IJ
or BIA. See Nakamoto v. Ashcroft, 363 F.3d 874, 880 (9th
Cir. 2004) (holding that marriage fraud involves reviewable
legal and factual questions); see also Damon v. Ashcroft, 360
F.3d 1084, 1089 (9th Cir. 2004) (describing legal and factual
issues involved in good faith marriage determinations). “[T]he
Attorney General cannot legally make a judgment [about
whether a petitioner’s marriage was in good faith] solely
according to the dictates of his or her conscience.”5 Naka-
moto, 363 F.3d at 881. Thus, we are generally free to review
BIA decisions that marriages were not entered into in good
faith, and we retain jurisdiction to do so when such decisions
constitute the basis for a denial of a statutory waiver under
§ 1186a(c)(4).6
5
We recognize that two other circuits have reached a different result.
See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004); Urena-Tavarez
v. Ashcroft, 367 F.3d 154, 161 (3d Cir. 2004). However, for the reasons
explained above, we disagree with the suggestion that all determinations
under § 1186a(c)(4) are left to the Attorney General’s “pure discretion.”
Urena-Taverez, 367 F.3d at 160. The statutory provision is manifestly to
the contrary, requiring a variety of factual and legal determinations devoid
of any need for subjective decisions.
6
Further evidence that the first reference to the Attorney General’s dis-
cretion does not eliminate our review of decisions under § 1186a(c)(4) is
provided by all the other legal and factual determinations called for by this
provision. For example, while the BIA based its denial on the lack of a
good faith marriage, other § 1186a(c)(4)(B) determinations also involve
questions of law or fact that would be reviewable under our precedent,
such as whether the alien’s marriage was “qualifying” or had been “termi-
5114 OROPEZA-WONG v. GONZALES
The second statutory reference to the Attorney General’s
discretion relied on by the government provides the basis for
its contention that courts are precluded from reviewing a par-
ticular aspect of the BIA’s decisions under § 1186a(c)(4):
adverse credibility determinations. Although credibility deter-
minations are generally reviewable in immigration law, see,
e.g., Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910 (9th Cir.
2004), the government points to language in the final para-
graph of § 1186a(c)(4) stating that “the determination of what
evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Attorney General.”
The statutory history of the section demonstrates beyond any
question, however, that Congress adopted this language for
the specific purpose of putting a stop to immigration officials’
practice of employing overly-strict evidentiary rules when
determining the credibility of battered women, and not in
order to limit judicial review of credibility decisions.7
Congress enacted § 1186a as part of the Immigration Mar-
riage Fraud Amendments of 1986. 99 Pub. L. No. 639,
§ 216(c)(D) (1986). Originally, this section set forth only two
nated” or whether the alien was legally “at fault” for failing to meet the
joint filing requirement. While neither of the other two exceptions for
hardship waivers, § 1186(c)(4)(A) and (C), is involved in this case, we
note that those determinations, too, will usually require factual and legal
determinations. See, e.g., Hernandez, 345 F.3d at 833-35 (reviewing the
factual and legal determinations underlying an “extreme cruelty” finding);
Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2001)
(reviewing a legal determination underlying an “extreme hardship” deci-
sion).
7
The statutory history recounted here is well documented in the second-
ary literature. Two particularly good sources, incorporated into the discus-
sion below, are Lesley E. Orloff & Janice v. Kaguyutan, Offering a
Helping Hand: Legal Protections for Battered Immigrant Women: A His-
tory of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95
(2001) and Sarah M. Wood, Note, VAWA’s Unfinished Business: The
Immigrant Women Who Fall Through the Cracks, 11 Duke J. of Gender
L. & Pol’y 141 (2004).
OROPEZA-WONG v. GONZALES 5115
grounds for obtaining a statutory waiver: (4)(A) (extreme
hardship) and (4)(B) (good faith marriage). The amendments
did not include (4)(C), the battered spouse provision, or the
“credible evidence” language. While successful in deterring
much immigration marriage fraud, § 1186a in its original
form often had unforeseen consequences for battered women.
As a result of the INS’s interpretation of “extreme hardship,”
statutory waivers were denied to many women abused by
their citizen or lawful permanent resident spouses. The INS’s
interpretation forced battered women “to remain in an abusive
relationship for fear of deportation.” H.R. Rep. No. 101-
723(i) at 6731 (1990).
In response to the INS’s interpretation, Congress, when
adopting the Immigration Act of 1990, amended § 1186a to
create a third, express ground for statutory waiver: spousal
abuse. See § 1186a(c)(4)(C); Battered Spouse or Child
Waiver of the Conditional Residence Requirement, 101 Pub.
L. No. 649, § 701 (1990). However, despite Congress’ ame-
liorative intent to “ensur[e] the safety and protect[ . . . ] the
legal rights of immigrants in situations of domestic violence,”
H.R. Rep. No. 101-723(i) at 6731 (1990), the INS again inter-
preted the provision narrowly. In particular, the INS imposed
onerous evidentiary requirements on battered women alleging
spousal abuse. For example, under 8 C.F.R. § 216.5(e)(3)(iii)
(1993), battered women were required to provide “experts” to
corroborate their stories, and to offer “expert testimony in the
form of reports and affidavits from police, judges, medical
personnel, school officials, and social service agency person-
nel.” To demonstrate extreme mental cruelty, the INS
required “the evaluation of a professional recognized by the
Service as an expert in the field.” 8 C.F.R. § 216.5(e)(3)(iv)
(1993). As Congress recognized, these stringent requirements
were difficult for non-English speakers to meet. See H.R.
Rep. No. 103-395, at 37-38 (1993). Consequently, few were
able to benefit from the new exception.
5116 OROPEZA-WONG v. GONZALES
[6] Congress became aware that the Immigration Act of
1990 had not succeeded in its objective of affording adequate
protection to battered women and children and that the INS
rarely found that victims of abuse met its standard for proving
credible evidence of their battery. H.R. Rep. 103-395, at 26,
37-38. Therefore, in the Violence Against Women Act of
1994 (VAWA), subtitle G, entitled “Protections for Battered
Immigrant Women and Children,”8 Congress once again
enacted a number of new provisions in a further effort to pro-
tect battered immigrant women and children. Specifically,
Congress created new exceptions in the visa and suspension
of deportation contexts for victims of spousal abuse—
exceptions that freed victims from relying on battering
spouses when seeking relief, much as Congress had initially
attempted to do by means of § 1186a(c)(4)(C) in the statutory
waiver context in 1990. See 101 Pub. L. No. 302, § 40701
(1994), 8 U.S.C. § 1154 (self petition provision) & 101 Pub
L. No. 302, § 40703 (1994), 8 U.S.C. § 1254a (repealed 1997)
(suspension of deportation). Congress also added an identical
“credible evidence” provision to all the VAWA provisions of
the subtitle, including § 1186a(c)(4), in order to make it easier
for battered women to prove spousal abuse. 101 Pub. L. No.
302, § 40702. It sought to eliminate the requirement for expert
or medical corroboration and directed the Attorney General to
consider all credible evidence, not just evidence provided by
experts:
In acting on applications under this paragraph, the
Attorney General shall consider any credible evi-
dence relevant to the application. The determination
of what evidence is credible and the weight to be
8
VAWA was passed within the Violent Crime Control and Law
Enforcement Act of 1994, 103 Pub. L. No. 322 (1994). The provisions rel-
evant here are 103 Pub. L. No. 322, § 40701 (1994), 8 U.S.C. § 1154 (self-
petition for visa provision); 103 Pub. L. No. 322, § 40702 (1994), 8 U.S.C.
§ 1186a(c)(4)(3) (hardship waiver provision); 103 Pub. L. No. 322,
§ 40703 (1994), 8 U.S.C. § 1254(a) (repealed 1997) (suspension of depor-
tation provision).
OROPEZA-WONG v. GONZALES 5117
given that evidence shall be within the sole discre-
tion of the Attorney General.
Id. Ironically, the provision on which the government now
relies to deprive aliens of the right to judicial review was
intended by Congress to bolster, rather than weaken, the
opportunities for battered women to obtain relief under immi-
gration law. H.R. Rep. No. 103-395 at 38 (discussing intent
to override existing regulation to aid battered women).
Congress’ purpose—to require that immigration officials
consider all of the available evidence and cease dismissing
claims for lack of credible evidence whenever battered
women had difficulty corroborating the facts of their abuse—
is explicitly stated in the legislative history. For example, the
House Report explained:
Section 242 [Use of credible evidence in spousal
waiver applications] sets forth the evidence stan-
dards to be applied in determining whether an alien
or an alien’s child had been battered or subject to
extreme cruelty. This section allows an alien who
makes an application for a battered spouse waiver
under Section 216(c)(4) of the Immigration and
Nationality Act to support that application with any
credible evidence.
....
Section 701 of the Immigration Act of 1990
amended the law to provide that one of the hardship
waivers to this requirement is available to an alien
who demonstrates that she was battered or was the
subject of extreme cruelty perpetrated by the citizen
or resident spouse. Current Immigration and Natural-
ization Service regulations require an application for
a hardship waiver to be supported by an affidavit
from a licensed mental health professional. This reg-
5118 OROPEZA-WONG v. GONZALES
ulation focuses the inquiry on the effect of the cru-
elty on the victim rather than on the violent behavior
of the abuser, and it may be discriminatory against
non-English-speaking individuals who have limited
access to bilingual mental health professionals. This
section overrides this regulation by directing the
Attorney General to consider any credible evidence
submitted in support of hardship waivers based on
battering or extreme cruelty whether or not the evi-
dence is supported by an evaluation by a licensed
mental health professional.
H.R. Rep. No. 103-395, at 37-38. In short, the VAWA
amendments were intended to supercede the INS’s restrictive
regulations regarding the admissibility of evidence and to
ensure that the INS did not commit similar errors with regard
to the new exceptions for self-petition visas or suspensions of
deportation, not to strip federal courts of jurisdiction to ensure
that battered women obtain the relief that Congress intended
to make available to them.9
9
Additional evidence of Congress’ intent regarding the “credible evi-
dence” provision is found in its enactment of the Battered Immigrant
Women Protection Act of 2000 (BIWPA). 106 Pub. L. No. 386 (2000).
Congress described BIWPA as a bill that “[s]trengthens and refines the
protections for battered immigrant women in the original Violence
Against Women Act.” H.R. Conf. Rep. No. 106-939 (2000) at 110; see
also id. at 111-15. Two provisions of BIWPA—one amending the suspen-
sion of deportation provision of VAWA, and another creating a waiver for
aliens involved in domestic violence crimes who were acting in self-
defense—include the identical “credible evidence” provision that Con-
gress used three times in VAWA. 106 Pub. L. No. 386, §§ 1504, 1505
(2000).
Congress’ use of the credible evidence provision twice in BIWPA,
given the context of the Act’s overall reduction of evidentiary hurdles for
battered women, confirms its intent with respect to the use of this lan-
guage in the earlier legislation. For example, BIWPA reduced the eviden-
tiary burdens on battered women and children by (1) eliminating a
separate “extreme hardship” showing for successful visa petitions, (2)
reducing the evidentiary burden on proving that a battering husband had
OROPEZA-WONG v. GONZALES 5119
Following the 1993 amendments, the INS appeared, at least
initially, to recognize Congress’ intention and to demonstrate
a willingness to comply with it. In 1996, the INS adopted a
regulation implementing VAWA’s self-petition visa amend-
ment and, in doing so, interpreted the credible evidence provi-
sion common to all of VAWA’s amendments. 61 Fed. Reg.
13061 (1996) (interim rule). The agency’s discussion of the
new regulations suggested that it understood that the amend-
ments were intended to provide considerable flexibility to
petitioners, including allowing the INS to grant relief to vic-
tims of abuse, even though they could provide only unsup-
ported affidavits when making a claim of battery, so long as
the affidavits were credible. Id. at 13066; see id. at 13068-69
(“In accordance with the [self-petition provision of VAWA],
this rule provides that the Service will consider all credible
evidence submitted with the application before reaching a
decision.”). Nothing in the INS’s interpretation suggested
that, in relaxing the evidentiary rules, Congress had any addi-
tional motivation, let alone any motivation that would be
inimical to the interests of battered women, such as stripping
the courts of jurisdiction to review their claims. In fact, due
in part to the credible evidence provision, VAWA’s protec-
tions for battered aliens resulted in significant improvements.
See, e.g., Orloff & Kaguyutan, supra n.7 at 169-70 (describ-
ing benefits to battered immigrant women from legislative
reforms). We see no reason now to reverse those recent
advances and return to a period when battered women were
viewed with suspicion and hostility and all too often were
deprived of judicial protection. Instead, we construe the
“credible evidence” provision precisely as Congress intended,
as a further means of affording protection to abused immi-
grants.
not been previously married, (3) reducing the difficulty of showing that
the abusing spouse was a U.S. citizen or lawful permanent resident, (4)
creating exceptions to the “good moral character” showing, and (5) reduc-
ing the burden on proving that someone was a crime victim for qualifica-
tion of a U Visa. See id. at §§ 1503(b), 1504(a), 1507, 1513.
5120 OROPEZA-WONG v. GONZALES
[7] In short, the provision in § 1186a(c)(4) affording the
Attorney General discretion over what constitutes credible
evidence must be interpreted in-line with Congress’s clear
intent: as a requirement that immigration officials liberally
admit evidence, not as a bar to judicial review. The result sug-
gested here by the government runs contrary to Congress’s
efforts over the last fourteen years to ensure that in reaching
critical immigration decisions, INS officials demonstrate
greater sensitivity toward the plight of battered women.
Depriving courts of power to enforce Congress’ will by pro-
scribing review of the decisions of INS officials would make
little sense, given Congress’ objective in adopting the provi-
sion at issue. As we explained when interpreting a different
provision of VAWA concerning what constitutes “extreme
cruelty” in the suspension of deportation context, it would be
perverse to hold that measures intended to protect battered
women serve instead to strip the courts of jurisdiction to pro-
tect their rights. Hernandez, 345 F.3d at 835 (“In light of Con-
gress’s desire to remedy the past insensitivity of the INS and
other governmental entities to the dangers and dynamics of
domestic violence, it appears quite unlikely that Congress
would have intended to commit the determination of what
constitutes domestic violence to the sole discretion of immi-
gration judges.”).
[8] Finally, although Congress created the credible evi-
dence provision principally to aid battered women, it made its
liberal evidence rule applicable to persons covered by all
three subsections of § 1186a(c)(4), including those whose
good faith marriages had been terminated by legal proceed-
ings. In VAWA, Congress was explicit about where within
the section the new rule should be codified, namely “after the
second sentence” of § 1186a(c)(4) (1993). 103 Pub. L. No.
322, § 40702 (1994). This places the credible evidence provi-
sion in the middle of a separate paragraph following the three
subsections. We know that this separate paragraph is not lim-
ited to the third subsection, (4)(C), covering battered women,
because the first sentence of the paragraph discusses “extreme
OROPEZA-WONG v. GONZALES 5121
hardship,” a concept relevant only to the first category of peti-
tioners, those covered by (4)(A). Therefore, the second refer-
ence to the Attorney General’s discretion in § 1186a(c)(4)
necessarily applies to all statutory waivers under
§ 1186a(c)(4), including those based on termination of a good
faith marriage. No basis exists for construing the pertinent
language differently with respect to any of those subsections.
Thus, the second statutory statement regarding the Attorney
General’s discretion does not bar our review of claims involv-
ing credibility determinations in cases regarding statutory
waivers under § 1186a(c)(4).
[9] There is one further jurisdictional question that neither
of the parties addresses: whether we have jurisdiction over the
order of removal. Because we are required to consider, sua
sponte, all jurisdictional questions that may exist, we do so
briefly now. See Spencer Enters., 345 F.3d at 687. Here, as
with the question of our jurisdiction over orders denying vol-
untary departure, the answer is clear, although this time the
result is the opposite. We do have jurisdiction over removal
orders for marriage fraud. In Nakamoto v. Ashcroft, we held
that we have jurisdiction to review orders of removal under
§ 1227(a)(1)(G)(ii), the second sub-paragraph of the marriage
fraud provision. 363 F.3d at 880-81. Oropeza’s order of
removal was issued pursuant to the first sub-paragraph of that
provision, § 1227(a)(1)(G)(i). For jurisdictional purposes, the
first and second sub-paragraphs are indistinguishable. Thus
we have jurisdiction over orders of removal under
§ 1227(a)(1)(G)(i).
B. Merits Analysis
Oropeza’s primary contention is that he is entitled to a stat-
utory waiver because he and Renteria entered into their mar-
riage in good faith. Having determined that we have
jurisdiction to review the BIA’s order denying the waiver, we
now consider whether substantial evidence supports that
order. Under the substantial evidence standard that governs
5122 OROPEZA-WONG v. GONZALES
our review of § 1186a(c)(4) waiver determinations, we must
affirm the BIA’s order when there is such relevant evidence
as reasonable minds might accept as adequate to support it,
even if it is possible to reach a contrary result on the basis of
the evidence. See Richardson v. Perales, 402 U.S. 389, 401
(1971). We conclude that there was substantial evidence in
the record to support the BIA’s adverse credibility finding and
its denial of the statutory waiver. We also deny review of the
BIA’s consequent affirmance of the IJ’s removal order for
marriage fraud.
1. Adverse Credibility Determination
[10] Adverse credibility determinations must be based on
“specific, cogent reason[s],” which the BIA provided here.
See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.
2003). The BIA’s adverse credibility finding was based in
part on Oropeza’s failure to inform the INS about his children
during his oral interview and on the pertinent INS forms. At
the time Oropeza failed to disclose the existence of his chil-
dren, he was not attempting to flee persecution and enter the
country but was simply concealing material information
related to a core element of his claim. Cf. Akinamade v. INS,
196 F.3d 951, 956 (9th Cir. 1999). Filing the form without
listing his children from prior relationships, including one
with Solis, enhanced Oropeza’s claim that his marriage to
Renteria was in good faith and therefore went to the heart of
the matter and properly served as a basis for an adverse credi-
bility determination. See Li v. Ashcroft, 378 F.3d 959, 962
(9th Cir. 2004). The BIA also based its adverse credibility
decision on Oropeza’s inconsistent testimony concerning
Solis. Because his relationship with Solis was an important
factor in determining whether he entered into the marriage
with Renteria in good faith, these inconsistencies also went to
the heart of his claim and properly served as a basis of the
BIA’s adverse credibility determination. Therefore, we hold
that the BIA did not err with respect to its credibility finding
and review the other evidence accordingly.
OROPEZA-WONG v. GONZALES 5123
2. Statutory Waiver
Substantial evidence supports the determination that
Oropeza did not meet his burden of proving by a preponder-
ance of the evidence that he entered his marriage to Renteria
in good faith. To determine the bona fides of the marriage, the
proper inquiry is whether Oropeza and Renteria intended to
establish a life together at the time they were married. See
Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). The IJ may
look to the actions of the parties after the marriage to the
extent that those actions bear on the subjective intent of the
parties at the time they were married. Id. at 1202. Additional
relevant evidence includes, but is not limited to, documenta-
tion such as lease agreements, insurance policies, income tax
forms, bank accounts, as well as testimony about the court-
ship and wedding. Damon, 360 F.3d at 1088. Neither the IJ
nor the BIA may substitute personal conjecture or inference
for reliable evidence. Id. at 1089.
[11] In this case, in addition to the adverse credibility deter-
mination, the BIA based its decision on evidence of inconsis-
tencies in the documentary evidence and the lack of
corroborating testimony to support the claim. The BIA noted
that Oropeza provided only limited documentation of the
short marriage, and that there were unexplained inconsisten-
cies in the documents, including more addresses than resi-
dences that Oropeza identified. The lease Oropeza provided
was not signed by him or by Renteria, and Oropeza failed to
show that he filed several other applications he offered into
evidence—for example, for life insurance and for an automo-
bile title. There was little corroborative evidence of Oropeza’s
version of the events—the only additional evidence being in
the form of a letter from a nurse who knew him only as a
patient. Although it might be possible to reach a contrary con-
clusion on the basis of the record, under the substantial evi-
dence standard, the evidence presented here does not compel
a finding that Oropeza met his burden of proving that the mar-
5124 OROPEZA-WONG v. GONZALES
riage was entered into in good faith. The BIA therefore did
not err in denying Oropeza’s statutory waiver.
3. Removal for Marriage Fraud
[12] We also deny the petition with respect to the order of
removal for marriage fraud. The only argument Oropeza
offers concerning his removal is that the BIA erred in denying
his application for a statutory waiver on the ground that his
marriage was not in good faith. Because we have rejected that
argument and because Oropeza does not challenge the BIA’s
removal order directly, or support his challenge to that order
by any separate argument, we deny his petition without fur-
ther discussion.10
IV. Conclusion
We lack jurisdiction over the denial of the voluntary depar-
ture claim but retain jurisdiction over the remainder of the
petition. We deny petitioner’s remaining claims, including
those pertaining to the denial of a statutory waiver and the
order of removal for marriage fraud.
Petition DISMISSED IN PART and DENIED IN PART.
10
We do not address here the higher burden of proof that the govern-
ment must meet to remove an alien under § 1227(a)(1)(G)(i). See Naka-
moto, 363 F.3d at 882 (holding that the INS has burden of proving
removability by clear, unequivocal, and convincing evidence). We also
note that Oropeza was not charged with removability under
§ 1227(A)(1)(D) for termination of conditional permanent residence.