596 F.3d 68 (1st Cir. 2010), 08-1399, Castro-Soto v. Holder

Docket Nº:08-1399.
Citation:596 F.3d 68
Opinion Judge:HOWARD, Circuit Judge.
Party Name:Francisco Antonio CASTRO-SOTO, Petitioner, v. Eric H. HOLDER, Jr.[*], Attorney General, Respondent.
Attorney:Ramon M. Gonzalez, for petitioner. Gregory G. Katsas, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel and Regan Hildebrand, Attorney, Office of Immigration Litigation, United States Department of Justice, for respondent.
Judge Panel:Before BOUDIN, JOHN R. GIBSON,[**] and HOWARD, Circuit Judges.
Case Date:February 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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596 F.3d 68 (1st Cir. 2010)

Francisco Antonio CASTRO-SOTO, Petitioner,

v.

Eric H. HOLDER, Jr. [*] , Attorney General, Respondent.

No. 08-1399.

United States Court of Appeals, First Circuit.

February 24, 2010

Submitted March 2, 2009.

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Ramon M. Gonzalez, for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel and Regan Hildebrand, Attorney, Office of Immigration Litigation, United States Department of Justice, for respondent.

Before BOUDIN, JOHN R. GIBSON,[**] and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Francisco Antonio Castro-Soto, a citizen and national of the Dominican Republic,

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petitions for review of the denial of his application for adjustment of status. The Board of Immigration Appeals (" BIA" ) determined that Castro-Soto was ineligible for adjustment of status because he entered the United States illegally and could not be " grandfathered" under Section 245(i) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1255(i). After review, we agree and deny his petition.

I.

In 2005, Castro-Soto entered the United States illegally. He was subsequently detained and charged with removability. At his removal proceeding, Castro-Soto sought adjustment of status, " a process whereby certain aliens physically present in the United States may obtain permanent resident status .... without leaving the United States." De Acosta v. Holder, 556 F.3d 16, 18 (1st Cir.2009). In requesting adjustment, Castro-Soto relied in part on an I-130 visa petition that his spouse had filed on his behalf in December 2004. Despite a statutory bar against adjustment by those who have entered the country illegally, Castro-Soto asserted that the visa petition could support adjustment of his status, because he was " grandfathered" based on a previous visa petition that had been filed on his behalf several years earlier.

This was not the first time that Castro-Soto had attempted to adjust his status based on his marriage to a United States citizen. He first entered the United States in 1988.1 At some point thereafter, he married his first wife, a United States citizen. In March 1992, she filed an I-130 petition on his behalf, seeking to qualify him as an immediate relative-spouse. See 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1); 8 C.F.R. § 204.2(a).

Based on his then-spouse's immediate relative visa petition, Castro-Soto filed an I-485 application for adjustment of status to that of lawful permanent resident. See 8 U.S.C. § 1255; 8 C.F.R. § 245.1(a). The immediate relative visa petition received final approval in June 1992, and in December 1992 Castro-Soto's application for adjustment of status was also approved.

The approval of the application for adjustment of status contained conditions, however. Under the INA, when an alien who has been married to a United States citizen for less than two years receives permanent resident status by virtue of that marriage, the grant of permanent resident status is conditional. 8 U.S.C. § 1186a. The alien and his spouse must submit a second petition requesting the removal of conditions, at which point the government may terminate the alien's permanent status if it finds that the marriage is not bona fide. 8 U.S.C. § 1186a(c), (d). If the alien fails to have the conditions to lawful permanent residence removed, his permanent resident status is terminated as of the date of that determination. 8 U.S.C. § 1186a(c)(3)(C).

Castro-Soto and his spouse did later petition for removal of the conditions, but their petition was denied. An Immigration Judge (" IJ" ) subsequently found that the petition to remove conditions had been denied because the " [g]overnment questioned the bona fides of the marriage and the intent of the marriage."

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Castro-Soto and his first wife divorced in 2001. He then sought relief from the consequences of the previous denial of the joint petition for removal of conditions, through an application for a waiver based on a good faith marriage ending in divorce. In June 2002, the Department of Homeland Security (" DHS" ) denied the waiver application and placed Castro-Soto in removal proceedings. See 8 U.S.C. § 1227(a)(1)(D)(i) (classifying as " deportable" aliens whose conditional permanent resident status has been terminated).

During removal proceedings, Castro-Soto again sought a waiver for a good faith marriage...

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