Binyam Yallew v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
MAY 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BINYAM FANCHO YALLEW, No. 13-72539
Petitioner, Agency No. A057-657-882
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2016**
Seattle, Washington
Before: GRABER, BERZON, and MURGUIA, Circuit Judges.
Binyam Fancho Yallew, a native and citizen of Ethiopia, petitions for review
of an order by the Board of Immigration Appeals (“BIA”) dismissing his appeal
from an immigration judge’s order finding Yallew removable and denying his
application under 8 U.S.C. § 1186a(c)(4)(B) for a waiver of the joint filing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
requirement to remove the conditional basis of his lawful permanent resident
status. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s denial of the waiver, see Oropeza–Wong v. Gonzales, 406
F.3d 1135, 1147 (9th Cir. 2005), and we grant in part and deny in part the petition
for review.
In light of the competing evidence offered by Yallew and his ex-wife, we are
not compelled to find that the BIA erred in finding Yallew less persuasive, nor that
Yallew entered into the marriage in good faith. See 8 U.S.C. § 1186a(c)(4)(B);
Oropeza-Wong, 406 F.3d at 1147–48. As the BIA noted, Yallew and his ex-wife
lived together only briefly before Yallew relocated to the United States without
her, the couple never significantly shared financial assets or liabilities, there was
limited communication between them after Yallew moved to the United States, and
they had no children. See 8 C.F.R. § 1216.5(e)(2); Oropeza–Wong, 406 F.3d at
1148. Therefore, substantial evidence supports the BIA’s conclusion that Yallew
did not marry with the intent of establishing a life with his ex-wife at the time they
were married. See Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004).
Nevertheless, the parties agree that a limited remand is appropriate for the
BIA to reconsider its holding that Yallew’s grant of voluntary departure
2
automatically terminated. We thus grant Yallew’s petition in limited part and deny
it in all other respects.1
PETITION GRANTED IN PART AND DENIED IN PART. The parties
shall bear their own costs on appeal.
1
In light of Yallew’s concession, we do not reach the question of whether he
may be eligible for a waiver of the joint filing requirement for reasons of extreme
hardship.
3