614 Fed.Appx. 314 (6th Cir. 2015), 14-3813, Dhaliwal v. Lynch

Docket Nº:14-3813
Citation:614 Fed.Appx. 314
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:KULWINDER DHALIWAL, Petitioner, v. LORETTA E. LYNCH, Respondent
Attorney:For KULWINDER SINGH DHALIWAL, Petitioner: Paul William Shonk, McKinney & Namei, Cincinnati, OH. For LORETTA E. LYNCH, U.S. Attorney General, Respondent: Siu P. Wong, Lisa Damiano, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
Judge Panel:BEFORE: NORRIS, SUTTON, and DONALD, Circuit Judges.
Case Date:June 08, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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614 Fed.Appx. 314 (6th Cir. 2015)

KULWINDER DHALIWAL, Petitioner,

v.

LORETTA E. LYNCH, Respondent

No. 14-3813

United States Court of Appeals, Sixth Circuit

June 8, 2015

NOT RECOMMENDED FOR PUBLICATION

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ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS.

For KULWINDER SINGH DHALIWAL, Petitioner: Paul William Shonk, McKinney & Namei, Cincinnati, OH.

For LORETTA E. LYNCH, U.S. Attorney General, Respondent: Siu P. Wong, Lisa Damiano, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

BEFORE: NORRIS, SUTTON, and DONALD, Circuit Judges.

OPINION

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BERNICE BOUIE DONALD, Circuit Judge.

Petitioner Kulwinder Singh Dhaliwal (" Dhaliwal" ) seeks review of a final order of removal by the Board of Immigration Appeals (" BIA" ). The only aspect of the BIA's decision that Dhaliwal challenges is the denial of a discretionary waiver pursuant to § 216(c)(4)(B) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1186a(c)(4)(B). A waiver, if granted,

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would dispense with the requirement that Dhaliwal submit a joint petition to demonstrate his marriage to a United States citizen, the basis for his conditional residence in the United States, was entered into in good faith. For the reasons stated herein, we AFFIRM the BIA's findings for substantive evidence and DISMISS the remainder of the petition for review.

I.

Dhaliwal, a native and citizen of India, was admitted to the United States on December 17, 1999, at Detroit, Michigan, as a conditional resident based on a marriage entered into on January 16, 1999 with Sukhvir Khera (" Sukhvir" ), a United States citizen. The marriage ended roughly nineteen months later in divorce on August 24, 2000, triggering a rebuttable presumption of marriage fraud. 8 U.S.C. § 1227(a)(1)(G)(i) ( imposing a rebuttable presumption of marriage fraud when a marriage rendering immigration benefits ends before two years). An unrebutted presumption would render Dhaliwal removable. Id. § 1227(a)(1)(G) ( " An alien shall be considered to be deportable as having procured a visa or other documentation by [marriage] fraud (within the meaning of section 1182(a)(6)(C)(i) of this title) and to be in the United States in violation of [the INA]" ).

To add insult to injury, less then a month after the divorce Sukhvir withdrew the I-130 petition which allowed Dhaliwal entry to the United States, and submitted an affidavit stating that Dhaliwal had only married her for immigration benefits. Around the same time, Dhaliwal's I-751 petition to lift the conditions on his permanent residence also came due. When conditional permanent residence is based on marriage to a United States citizen, within two years after initial entry into the United States, the alien spouse is required to file a joint petition (I-751) swearing that the marriage was (1) legal, (2) had not been annulled or terminated, and (3) was not entered into for immigration purposes. 8 U.S.C. § § 1186a(a)(1), (c)(1)(A), (d)(1)(A), (d)(2)(A), 8 C.F.R. § 216.4(a)(1). Dhaliwal requested a " discretionary" or " hardship" waiver that would excuse him from the joint filing requirement and allow him file a Form I-751 petition without Sukhvir's involvement. 8 U.S.C. § 1186a(c)(4)(B). To be eligible for a discretionary waiver, an alien must first demonstrate that he entered into a " qualifying marriage . . . in good faith." Id.

For purposes of qualifying for a discretionary waiver under section 216(c)(4)(B), " [t]he central question is whether the bride and groom intended to establish a life together at the time they were married." See, e.g., Matter of Laureano, 19 I. & N. Dec. 1, 2-3 (BIA 1983); Matter of McKee, 17 I. & N. Dec. 332, 334-35 (BIA 1980). Their conduct after the wedding is also relevant. Laureano, 19 I. & N. Dec. at 3; see also Acheampong v. Keisler, 250 Fed.Appx. 158, 161 (6th Cir. 2007) (" Conduct after the marriage is evidence of the couple's state of mind at the time they married." ). In determining whether an alien entered into a qualifying marriage in good faith, a factfinder considers evidence of the amount of commitment by both parties to the marital relationship. 8 C.F.R. § 216.5(e)(2). Such evidence includes documentation of comingled financial assets, length of time during which the parties cohabitated after the alien received conditional resident status, and any children born to the couple. Id. at (i)-(iv); see also King v. Holder, 570 F.3d 785, 788 (6th Cir. 2009).

Accordingly, the facts of the couple's meeting, wedding, life as a married couple, and divorce are all relevant considerations. In this case those facts are complicated

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and confusing--in large part due to inconsistent witness testimony and possible language barriers. Piecing together facts from...

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