430 F.3d 546 (2nd Cir. 2005), 03-4070, Monter v. Gonzales

Docket Nº:03-4070.
Citation:430 F.3d 546
Party Name:Bogar Allax MONTER, Petitioner, v. Alberto GONZALES,[*] Attorney General of the United States, Respondent.
Case Date:November 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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430 F.3d 546 (2nd Cir. 2005)

Bogar Allax MONTER, Petitioner,

v.

Alberto GONZALES, [*] Attorney General of the United States, Respondent.

No. 03-4070.

United States Court of Appeals, Second Circuit.

Nov. 14, 2005

Argued: May 17, 2005.

Final submission: July 27, 2005.

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[Copyrighted Material Omitted]

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Eva S. Rubinson, Avirom & Associates LLP (Jonathan E. Avirom, of counsel), New York, NY, for Petitioner.

Audrey B. Hemesath, Special Assistant United States Attorney for the Eastern District of California (McGregor W. Scott, United States Attorney, of counsel), Sacramento, CA, for Respondent.

Before: MINER and SACK, Circuit Judges, and SPATT, District Judge.[**]

SACK, Circuit Judge.

The petitioner, Bogar Allax Monter, a citizen of Mexico, entered the United States in 1988, married a United States citizen in 1993, and thereafter began the process of attempting to become a United States citizen. In the course of that effort, several years after he was married and after he had been granted conditional permanent residency status, he submitted a form I-751 Petition to Remove the Conditions of Residence ("I-751 Petition") to the Immigration and Naturalization Service ("INS"),1 which was approved without an interview. The INS later discovered, however, that Monter had made a misrepresentation in his I-751 form. The central questions with respect to this petition are whether the misrepresentation was "material" and whether Monter was therefore removable2 under the immigration laws. The Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") answered in the affirmative as to both.

In his petition to this Court, Monter argues that the BIA was wrong to conclude that "by giving false information concerning his separation from his wife, [Monter] procured a benefit under the Immigration and Nationality Act by willfully misrepresenting a material fact."In re Monter, A73-496-973 (B.I.A. Dec. 9, 2002) (per curiam). He further argues that the BIA erred in holding that Monter's willful misrepresentation rendered him removable without deciding whether Monter's truthful response would necessarily have prompted the INS to deny his original I-751 Petition. Monter also asserts that the IJ abused his discretion by denying Monter's motions for a change of venue and for a continuance, and by not informing Monter

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of other forms of relief available to him.

We think that the BIA correctly determined that Monter's misrepresentation was material. We further conclude, however, that under the prevailing law governing these proceedings, the BIA's determination merely established a presumption of removability, one that Monter must be afforded the opportunity to rebut. Because Monter was not given this opportunity and because he may have been prejudiced by the IJ's denial of his motion for a change of venue, we grant the petition insofar as we vacate the order of the BIA and remand with instructions for it, in turn, to vacate the IJ's order and remand with instructions to the Immigration Court to grant Monter's request for a transfer of this matter to New York City for his hearing.

BACKGROUND

According to Monter, he entered the United States in 1988. In June 1992, he met Jennifer Warner, a United States citizen. In February 1993, they began to cohabit in Pelham, New York.

On December 10, 1993, Monter and Warner were married in a civil ceremony in nearby New Rochelle, New York. A religious ceremony followed in October of the following year after Jennifer Warner, now Jennifer Monter, had converted to Roman Catholicism. Nearly two years later, on October 2, 1995, Monter obtained Conditional Permanent Residence based on his status as the spouse of a United States citizen.

In January 1997, more than a year-and-a-half after his change of status, Monter and his wife separated and thereafter resided apart from one another. Monter testified before the IJ that he and his wife nonetheless continued to see each other once or twice a week. He said that they had been hoping that they would reconcile and that they had not at that time discussed the possibility of, let alone obtained, a divorce.

Six months after Monter and his wife separated, he filed his I-751 Petition to "Remove the Conditions of Residence," which was jointly signed by his wife.3 The petition form asks for the address of the petitioner's residence and also for the address of "the spouse or parent through whom [he] gained [his] conditional residence. "See I-751, "Petition to Remove Conditions on Residence," U.S. Dep't of Homeland Security, Bureau of Citizenship & Immigration Servs., available at http://uscis.go v/graphics/form sfee/forms/file s/I-751.pdf (last visited Nov. 11, 2005). Monter falsely listed the same address for both Jennifer and himself. It was, in fact, the address at which his wife was living, but not where he then resided.

Monter's I-751 Petition was approved without an interview on September 5, 1997. He thereby became a Permanent Resident of the United States.

Also in 1997, Monter established a relationship with a Canadian woman with whom, in November of that year, he began to cohabit in Canada. In March 1998, while attempting to enter the United States from Canada, Monter was stopped and questioned by United States immigration officials in Buffalo, New York. He executed a sworn statement in Buffalo, describing his separation and admitting that he realized at the time he submitted his I-751 Petition that he was committing fraud. The statement included this dialog:

Q. At the time you adjusted your status ... were you separated from your wife?

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A. Yes.

Q. Were you living with her?

A. No.

....

Q. When you filed to adjust your status, did you claim that you were still living with your wife?

A. Yes.

Q. Did you file documents to show that you were living together?

A. Yes.

Q. What sort of documents?

A. Like a mortgage, the utility bills and a bank account and pictures.

....

Q. When you filed to adjust your status ... did you realize that by making false statements you were committing fraud?

A. Yes.

Q. Do you have anything you want to add to this statement?

A. We thought we were going to get back together.

Record of Sworn Statement, Mar. 31, 1998, at 4-5.4 The exchange is followed by Monter's signature.

Monter was served with a "Notice to Appear" at removal proceedings to be held on August 5, 1998, in Buffalo, New York. The Notice charged that Monter "procured a benefit by fraud or by willfully misrepresenting a material fact." Notice to Appear, Mar. 31, 1998, at 2.

In a letter dated August 1, 1998, and filed two days later, Monter's counsel requested a change of venue for Monter's hearing from Buffalo to New York City. On August 5, an IJ nonetheless held a hearing in Buffalo. Neither Monter nor his counsel was present. At the hearing, counsel for the government did not contest Monter's motion for a change of venue:

Because this case did come out of the New York [City] area and I believe the interview5 took place in New York City, it looks like the approval of the I-485 [Application to Register Permanent Residence] initially, as well as the I-130 [Petition for Alien Relative] was in New York, I would think New York City is a good place for this matter to continue since any witnesses or any evidence would have to be obtained from the Immigration Service there. Therefore, I would not be opposed to an actual change of venue....

Tr. of Removal Hr'g, Aug. 5, 1998, at 2-3 (footnote added). The IJ nonetheless denied Monter's motion for a change of venue. The IJ said that there was no assurance that Monter was still in the United States. He further commented: "I have other misgivings about this matter" because the motion to change venue, having been filed two days before the hearing, "was not filed ... on a timely basis. "Id. at 4. He noted that neither Monter nor his lawyer had notified the INS that they would not appear at the Buffalo hearing, and that no exceptional circumstances excusing this failure were apparent. Rather than order Monter removed in absentia, however, the IJ rescheduled the hearing for January 27, 1999.

Monter's counsel appeared at the postponed hearing. He admitted, on his client's behalf, some of the allegations against Monter, but denied "that [Monter] made a willful material misrepresentation [to the INS]." Tr. of Removal Hr'g, Jan. 27, 1999, at 7-8. He also argued in support

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of a renewed motion for a change of venue to New York City. He asserted that the key issue in Monter's case was "whether [a] misrepresentation appears [in the I-751 Petition] and if so, whether such misrepresentation was material. "Id. at 9.

Noting that a key piece of evidence in the case was Monter's signed statement taken by immigration officials in Buffalo, Monter's counsel acknowledged that the statement

is in fact [Monter's] statement, that [Monter] made it, that he knew he made it and that he would have no objection to it being received in evidence in this case so that the testimony of the [Buffalo] officers as to his condition at the time he made it or that he made it, would not be necessary at a trial.

Id. Monter's counsel further stipulated to the admissibility of the I-751 and other documents tendered by the INS to the IJ. Because "the Government's interest would be protected by [Monter's] stipulations," Monter's counsel argued that the "respondent's interest in having the trial where he lives and his wife, who is a critical witness, lives, would weight ... the balance of moving the case down to New York City, which has the most nexus to the issues to actually be tried. "Id. at 10.

The government seemed willing, as it had been previously, to...

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