Urena-Tavarez v. Ashcroft

Decision Date07 May 2004
Docket NumberNo. 03-1013.,03-1013.
PartiesDaniel URENA-TAVAREZ, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent
CourtU.S. Court of Appeals — Third Circuit

Steven Vosbikian (Argued), Vosbikian and Grady, Cherry Hill, NJ, for Petitioner.

Peter D. Keisler, Assistant Attorney General Civil Division, Jeffrey S. Bucholtz

(Argued), Deputy Assistant Attorney General Civil Division, David V. Bernal, Assistant Director Office of Immigration Litigation, Russell J.E. Verby, Trial Attorney Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: SLOVITER, RENDELL, and ALDISERT, Circuit Judges.

SLOVITER, Circuit Judge.

In this Petition for Review from a final order of removal entered by the Board of Immigration Appeals (BIA) the Petitioner, Daniel Urena-Tavarez (Tavarez),1 argues that the decision of the Immigration Judge (IJ) was not based on adequate findings of fact and that the BIA did not properly evaluate the IJ's findings against himself and his two minor children. In considering the arguments, we find ourselves faced with a more fundamental and more generally applicable question — one going to the statutory limitation on our review of matters committed to the Attorney General's discretion.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioner is a 61-year old native and citizen of the Dominican Republic, and his two children, Danny Zefar Tavarez, age 15, and Daniela Zefar Tavarez, age 14, are also natives and citizens of the Dominican Republic. It is unclear from the record when and in what fashion Tavarez entered the United States, but on September 3, 1992, he married Eladia Pineiro,2 a citizen of the United States, in Camden, New Jersey, after dating her for about six or seven months. Marriage of an alien to a United States citizen entitles an alien to obtain conditional permanent resident status, Immigration and Nationality Act (INA) § 216(a)(1), 8 U.S.C. § 1186a(a)(1), and Tavarez obtained such status on January 8, 1994 pursuant to an application filed by Pineiro.3

Under the INA, the conditions on such status can be removed if "the alien spouse and the petitioning spouse (if not deceased) jointly ... submit to the Attorney General ... a petition which requests the removal of such conditional basis...." INA § 216(c)(1)(A), 8 U.S.C. § 1186a(c)(1)(A).4 Pursuant thereto, Tavarez and Pineiro filed a joint application on December 1, 1995 to have the conditions on Tavarez's permanent residence status removed, and an immigration officer from the then-Immigration and Naturalization Service (INS) scheduled the interview for November 19, 1998.5 Shortly before the interview with the immigration officer, Tavarez and Pineiro quarreled over which of them was responsible for payment of Pineiro's share of the income taxes. Tavarez left the room to use the men's room. Pineiro was called into the interview alone and told the immigration officer that although she did not want to harm Tavarez, "she didn't live with [Tavarez] and she was a friend." A.R. at 134 (testimony of witness Carmen Sanchez). The immigration officer reassured her by stating that she was not harming him. Pineiro then signed a sworn statement before the immigration officer, apparently prepared by the officer, stating that she and Tavarez never lived together as a married couple and that they did not consummate the marriage. She also stated, "I felt pity on him so I married him. I only married her [sic] so she [sic] could obtain her [sic] legal permanent residence." A.R. at 337.

When Tavarez came into the interview room, the immigration officer informed him that he was no longer eligible for permanent resident adjustment status because his wife withdrew the petition. Tavarez "looked at [his wife] and said, what you trying to do? You crazy. Why you doing this? And all [Pineiro] did was put her head down and didn't answer anything." A.R. at 134 (testimony of witness Carmen Sanchez). In the car ride home, when Pineiro realized that Tavarez would be deported, "she started crying and then hugged him and said, you know, sorry, I didn't mean to do that. That's not what I wanted to do, I just wanted to be out of the problem so I didn't have to, you know, pay the taxes...." A.R. at 135-136 (testimony of witness Carmen Sanchez). The INS District Director denied Tavarez's application to remove the condition on his permanent resident status; thus his conditional status was deemed to have expired on January 8, 1996.

Thereafter, the INS began proceedings to remove Tavarez and his children by filing a Notice to Appear, charging that his status as a conditional permanent resident was terminated pursuant to 8 U.S.C. § 1186a, and that he obtained his immigrant status by fraud or willful misrepresentation of a material fact. The removal proceedings were assigned to an IJ.

It was incontestable that Pineiro had withdrawn her support, thereby eliminating any possibility of change of Tavarez's status on the basis of a joint application. Tavarez then filed applications for a waiver of the obligation to file a joint application. Under the INA, the Attorney General may waive the obligation of a joint filing requirement for an alien and his spouse if (1) the removal would result in extreme hardship, (2) the marriage terminated but was entered into in good faith, or (3) the marriage was entered into in good faith but that the citizen spouse either battered or subjected the alien spouse to extreme cruelty. INA §§ 216(c)(4)(A)-(C), 8 U.S.C. §§ 1186a(c)(4)(A)-(C). Tavarez based his application on all three statutory exceptions.

Sometime thereafter, Pineiro divorced Tavarez. The IJ summarily denied the waivers based on extreme hardship and battered spouse, stating that there was no or almost no evidence for either. The IJ then considered the evidence from the hearing before him and devoted a significant amount of his decision to discussing the issue of whether the marriage was entered into in good faith. A waiver under INA § 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B), permits removal of the conditions on an alien's permanent resident status without requiring his spouse to petition jointly for such removal if "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 ...)." Id.

The witnesses before the IJ included Carmen Sanchez, who assisted Tavarez and Pineiro in the preparation of immigration documents, tax filings, and in translation at the immigration interview. At the December 7, 1999 hearing before the IJ, Sanchez testified that in Tavarez's bathroom absence while waiting for the immigration officer's hearing, Pineiro told her that unless Tavarez paid her share of the taxes, she would "drop" his immigration case. A.R. at 132. Sanchez admitted that she never went to the Tavarez's house, but stated that they were all from the same neighborhood and that she "[saw] them all the time together." A.R. at 148. The IJ characterized Carmen Sanchez as a "rather compelling" and "honest witness" in whose testimony he placed "a great deal of credence." A.R. at 40. The other witness for Tavarez was Danny Tavarez, Tavarez's son, who moved in with the couple in August 1997 after leaving the Dominican Republic, and who testified that Pineiro prepared his meals, picked out his school clothes, and taught him how to do chores. A.R. at 262. The IJ found this testimony to "be worthy of some degree of belief." A.R. at 40.

In addition, Tavarez testified as did his daughter. The final witness, Miguel Espinal, a friend who attended the wedding, testified he would see the couple together, took them to the bank and shopping, and cooked with them at their home. The IJ also considered Pineiro's sworn statement in reaching his decision that the marriage was not undertaken in good faith. Because the IJ concluded that "this is a case of a friendship, of a relationship of some sort but not a marriage," he denied the application for a waiver of the joint filing requirement. A.R. at 43. The IJ ruled that Tavarez is removable under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), because his status as a conditional permanent resident was terminated. Tavarez appealed to the BIA, which affirmed the decision of the IJ, concluding, "Although [Tavarez] submitted evidence and testimony that his marriage was in `good faith,' in light of his former wife's statement, we defer to the Immigration Judge' [sic] finding in this case." A.R. at 3. Tavarez then filed the pending Petition for Review.

II. DISCUSSION
A. 8 U.S.C. § 1252(a)(2)(B)(ii)

Shortly before oral argument before this court, the Government sent the court a letter, pursuant to Federal Rule of Appellate Procedure 28(j), stating that "[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii), this Court lacks jurisdiction to review [the denial of the waiver], because [8 U.S.C.] § 1186a(c)(4) confers to the Attorney General's `sole discretion' the determination whether petitioner presented evidence of sufficient credibility and weight to satisfy that provision." 28(j) Letter from the Government, to Office of the Clerk, at 2 (Jan. 13, 2004). We must first consider this issue of jurisdiction, as it "is axiomatic that this court has a special obligation to satisfy itself of its own jurisdiction...." United States v. Touby, 909 F.2d 759, 763 (3d Cir.1990) (internal quotation and citation omitted). We review jurisdictional questions de novo. See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir.2000).

The Supreme Court has held that only a showing of "clear and convincing evidence" is sufficient to support a finding that Congress intended to preclude judicial review of an administrative action. Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). This standard reinforces "the presumption favoring...

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