Cabrera-Perez v. Gonzales

• Citation: 456 F.3d 109
• Decision Date: 01 August 2006
• Docket Number: No. 05-3896.,05-3896.
• Parties: Dominga CABRERA-PEREZ, Petitioner, v. Alberto GONZALES, Attorney General of the United States.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

456 F.3d 109

Dominga CABRERA-PEREZ, Petitioner, v. Alberto GONZALES, Attorney General of the United States.

No. 05-3896.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) April 14, 2006.

August 1, 2006.

Dominga Cabrera-Perez, Bronx, NY, pro se.

Neil R. Gallagher, Office of United States Attorney, Newark, NJ, for Alberto Gonzales.

Before MCKEE, FUENTES and NYGAARD, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Petitioner Dominga Cabrera-Perez, a native and citizen of the Dominican Republic, entered the United States in April 1991 on a visitor's visa. She married Jorge Perez-Rosario, an American citizen, in the Bronx in December of that year. Mr. Perez filed an adjustment of status application on her behalf, and, following an interview at the United States Embassy in the Dominican Republic, Cabrera became a lawful permanent resident on a conditional basis pursuant to Immigration and Nationality Act ("INA") § 216(a), 8 U.S.C. § 1186a(a) (1993).¹ She was admitted to the United States with that status on March 24, 1993. A.R. 139.²

Mr. Perez died on December 6, 1993. The conditional permanent resident statute, INA § 216, provides at subparagraphs (c) and (d) that, in order for the conditional basis to be removed, the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General a petition which states that the marriage, in sum and substance, was not entered into for the purpose of gaining an alien's entry as an immigrant. 8 U.S.C. § 1186a(c)(1)(A), (d)(1). The alien spouse and the petitioning spouse (if not deceased) must also appear before immigration authorities for a personal interview. 8 U.S.C. § 1186a(c)(1)(B). The usual time for filing the petition under INA § 216(d)(2)(A), 8 U.S.C. § 1186a(d)(2)(A), is 90 days before the second anniversary of gaining status.

Cabrera did not petition for removal of the conditional basis of her status as required by INA § 216(c) during this time period. Accordingly, her conditional permanent resident status was terminated effective March 25, 1995, the day after the second anniversary of gaining her status. Cabrera was issued a termination notice by the Immigration and Naturalization Service ("INS"), dated January 23, 1996, which stated that she and Mr. Perez had failed to jointly petition for removal of the conditional status as follows:

In accordance with the provisions of Section 216(c) of the Immigration and Nationality Act you and your spouse through whom you obtained your conditional permanent residence were required to file a joint petition requesting removal of the conditional basis of your residence between 12/24/94 and 03/24/95. As of this date, no such petition has been filed. Therefore, in accordance with the provisions of Section 216(c)(2)(A) of the Immigration and Nationality Act, the permanent resident status previously accorded you is hereby terminated as of 03/25/95.

A.R. 139.³

On November 13, 1997, Perez filed an I-751 Petition to Remove Conditions on Residence, seeking a waiver of the joint filing requirement because her husband was deceased. A.R. 93, 249.⁴ A certificate of death was submitted with the application. Inexplicably, Mr. Perez' mother, the informant on the Death Certificate, had listed Mr. Perez' marital status as "unmarried." A.R. 138. On May 11, 1999, the District Director denied the application, concluding that Cabrera had not entered into the marriage in good faith.

The District Director found the Death Certificate, with its erroneous information, to be probative of the question whether the marriage was entered into in good faith, and did not believe that there was a logical basis for Cabrera's mother-in-law to inform the person who filled out the death certificate that her son had never been married. In addition, Cabrera had failed to submit adequate historical documentation and had failed to appear for a scheduled interview. The decision concludes with an apparent misstatement that "[I]t is obvious that that [sic] your marriage to Jorge Perez was for reasons other than to procure your entry to the United States as an immigrant." A.R. 141-42. Removal proceedings were initiated against Cabrera with service of Notice To Appear on June 2, 1999, charging her as removable under INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i), as an alien whose permanent residence status on a conditional basis was terminated.

It was, of course, undisputed that Cabrera and Perez were married. In fact, Mr. Perez had been married twice before, according to their marriage certificate. A.R. 131. Cabrera obtained counsel, and through him, she submitted a persuasive motion to reopen her I-751 waiver petition. She submitted her marriage certificate, Mr. Perez' 1988 divorce decree, A.R. 132-33, a photograph of the happy couple (if body language is any indicator) on a New York City Circle Line tour, A.R. 134, and a statement concerning the proposed testimony of three witnesses in support of Cabrera's contention that her marriage had been entered into in good faith and was legitimate. A.R. 129, 257. On April 17, 2000, Immigration Judge Nicole Y.K. Kim granted the motion and ordered that proceedings be reopened for adjudication of the I-751 waiver petition. The matter was remanded to the District Director. A.R. 70.

On September 24, 2001, Cabrera appeared for her personal interview. However, on March 11, 2002, the District Director again denied her waiver petition, essentially for the same reasons it originally was denied. A.R. 249-251. Again, the District Director did not believe there was a logical basis for Cabrera's mother-in-law to report that her son had never been married, and, again, she opined that there was a lack of historical documentation and a failure to appear for the scheduled interview. Again the decision includes the misstatement that Cabrera's marriage to Perez was for reasons other than to gain entry into the United States. Removal proceedings effectively were reinstated.

Cabrera obtained new counsel, Jeffrey B. Steinfeld, Esquire, and she appeared for a Master Calendar hearing on September 26, 2002 before Immigration Judge Esmeralda Cabrera (hereinafter "the IJ"). Again on October 24 and November 21, 2002, at Master Calendar hearings, Cabrera appeared with counsel, prepared to go forward. A.R. 109. On November 21, 2002, a merits hearing date of April 17, 2003 was scheduled. However, this hearing was rescheduled, apparently by Immigration Court staff, to August 11, 2003.

Prior to the August 11, 2003 hearing date, counsel met with a number of witnesses, and prepared them to testify. On August 5, 2003, counsel wrote to the IJ, advising her that Cabrera had filed an EOIR-42A Application for Cancellation of Removal, see 8 U.S.C. § 1229b(b), on November 21, 2002. He also advised the IJ in this letter that Dalia and Gustavo Garcia, Maria Abreu, and Altagracia Aponte, would testify at the August 11 hearing, as follows: "I anticipate presenting testimony from most, if not all, of these witnesses, in addition, to Ms. Cabrera de Perez herself, in support of her Application that she was legitimately married to her deceased husband, Jorge Luis Perez, and resided with him in Bronx, New York from December 13, 1991 through his death, on December 6, 1993." A.R. 143-44.⁵ Counsel may also have "re-filed" Cabrera's I-751 waiver petition in November 2002, possibly for the purpose of supplementing it. A.R. 87-88.

Counsel appeared in Immigration Court at 1:00 p.m. on August 11, 2003, but Cabrera was not on time. As Cabrera had previously conceded removability, the IJ directed that an in absentia order of removal from the United States to the Dominican Republic be entered against her. According to counsel, the IJ took the bench at 1:00 p.m., and ordered removal in absentia at approximately 1:20 p.m. A.R. 110.

On November 5, 2003, Cabrera, through the same counsel, moved to reopen the proceedings pursuant to 8 C.F.R. § 3.23(b)(4)(ii) and INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C), and to vacate the in absentia order, contending that the failure to appear was due to extraordinary circumstances as defined in INA § 240(e)(1). In addition, Cabrera argued that her tardiness did not constitute a failure to appear, relying on decisions from the Ninth and Seventh Circuits, Jerezano v. Immigration & Naturalization Serv., 169 F.3d 613 (9th Cir.1999), and Nazarova v. Immigration & Naturalization Serv., 171 F.3d 478 (7th Cir.1999). The Department of Homeland Security, which had taken over the functions of the INS, opposed the motion.

Cabrera's motion to reopen was supported by affidavits from Cabrera herself and her brother-in-law, Mr. Garcia, the substance of which was that, on the day of the hearing, Mr. Garcia picked up witness Aponte in the Bronx in his car at approximately 11:00 a.m., and drove back home to his house in Hackensack, New Jersey, where Cabrera and Dalia, her sister, waited for another witness, Marisol Solis, a close friend of Cabrera and her late husband, A.R. 28, to arrive. Mr. Garcia and Aponte arrived in Hackensack at approximately 11:30 a.m. The party had planned to depart for the courthouse in Newark at 12:00 p.m., but Ms. Solis was delayed by traffic on the George Washington Bridge, and did not arrive in Hackensack until between 12:20 and 12:30 p.m. They finally left Hackensack for Newark between 12:30 and 12:40 p.m. Mr. Garcia, who was not familiar with Newark, drove this distance of about 18 miles, arriving at the Courthouse on Broad Street and parking the car between 1:15 and 1:18 p.m.

Cabrera proceeded immediately to Courtroom B on the 11^th floor, but the door was locked. She then went to the Court office and waiting room sometime between 1:20 and 1:25 p.m., and spoke to court staff. Court staff made a telephone call, presumably to the IJ, but then advised Cabrera that a final order of removal had been entered. When Cabrera finally left the Courthouse,...