662 F.3d 584 (1st Cir. 2011), 10-2013, McKenzie-Francisco v. Holder

Docket Nº:10-2013.
Citation:662 F.3d 584
Opinion Judge:SELYA, Circuit Judge.
Party Name:Jos
Attorney:Raymond S
Judge Panel:Before BOUDIN, SELYA and HOWARD, Circuit Judges.
Case Date:December 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 584

662 F.3d 584 (1st Cir. 2011)

José Luís McKENZIE-FRANCISCO, Petitioner,


Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10-2013.

United States Court of Appeals, First Circuit.

December 5, 2011

Submitted Nov. 9, 2011.

Page 585

Raymond Sánchez Maceira on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before BOUDIN, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, José Luís McKenzie-Francisco, is a native and citizen of the Dominican Republic. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) refusing to remove a condition encumbering his resident status and mandating his removal to his homeland. After careful consideration, we deny the petition.

The stage can quickly be set. In 1999, the petitioner entered the United States without inspection. He married Jennifer Ann Cordero Estrella (Cordero), a United States citizen, on March 23, 2001. As a result, the government granted him conditional

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resident status. See 8 U.S.C. § 1186a(a)(1).

The marriage did not last. The couple divorced in early 2004 (while the petitioner was still a conditional resident). The petitioner nonetheless sought to remove the condition within the prescribed two-year period. See id. § 1186a(d)(2).

Because the divorce prevented him from submitting the standard joint petition for removal of the condition, see id. § 1186a(c)(1), (d)(1), he applied for a hardship waiver of the petition requirement, see id. § 1186a(c)(4)(B). In furtherance of this waiver request, he represented that his failed marriage had been entered into in good faith. The waiver request did not fare well. The appropriate immigration authorities denied it; terminated his lawful resident status, see id. § 1186a(c)(2)(A); and initiated removal proceedings against him, see id. § 1227(a)(1)(D)(i).

In the immigration court, the petitioner renewed his waiver request. The immigration judge (IJ) received documentary evidence and heard testimony from both the petitioner and his ex-wife. At the close of all the evidence, the IJ concluded that the marriage had not been entered into in good faith and denied the waiver. She then ordered that the petitioner be removed to the Dominican Republic.

Discerning no error, the BIA affirmed the IJ's decision. This timely petition for judicial review followed.

The petitioner's main argument is that the IJ erred in finding that the marriage was a sham. As a secondary matter, he upbraids the IJ for stating that the sole purpose of the marriage was to circumvent the immigration laws. In the petitioner's view, this ipse dixit has unfair collateral consequences 1 and implicates his due process rights because he had no notice that his motivation would be in issue. We address these arguments sequentially, pausing first to sketch some of the governing legal principles.

In immigration cases, we review the agency's findings of fact in accordance with the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). Consequently, we will honor such findings as long as they are " supported by reasonable, substantial and probative evidence on the record considered as a whole." Seng v. Holder, 584 F.3d 13, 17 (1st Cir.2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). A credibility determination is a finding of fact, and we will set aside such a determination only if " the evidence is such as would compel a reasonable factfinder to reach a contrary conclusion." Id. We review conclusions of law de novo but with some deference to the agency's founded interpretation of statutes and regulations that it administers. Mariko v. Holder, 632 F.3d 1, 5 n. 2 (1st Cir.2011).

We turn from these general norms to the particular legal framework that pertains here. In order to convert conditional residency status into permanent residency status by virtue of marriage to a United States citizen, an alien and his citizen spouse must first submit a joint petition. 8 U.S.C. § 1186a(c)(1)(A); see also Castro-Soto v. Holder, 596 F.3d 68, 70 (1st Cir.2010). If the alien is unable to do so because of an intervening divorce, he must secure a hardship waiver. 8 U.S.C. § 1186a(c)(4)(B). The availability of such a waiver depends in part on the alien's ability to demonstrate that he had

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entered into the marriage in good faith. Id.

The alien has the burden of proof on this issue. See Boluk v. Holder, 642 F.3d 297, 301-02 (2d Cir.2011); see also 8 U.S.C. § 1186a(c)(4)...

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