Alhuay v. U.S. Attorney Gen., 10–15334.
| Decision Date | 26 October 2011 |
| Docket Number | No. 10–15334.,10–15334. |
| Citation | 23 Fla. L. Weekly Fed. C 513,661 F.3d 534 |
| Parties | Maria Gladys ALHUAY, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Christopher R. Helm, Candice M. Tewell, Davis Wright Tremaine, LLP, Seattle, WA, for Petitioner.
Anthony P. Nicastro, Andrew N. O'Malley, David Bernal, Ernesto H. Molina, Jr., Krystal Samuels, U.S. Dept. of Justice—Office of Immigration Litigation, Eric Holder, Jr., Washington, DC, David Delgado, Orlando, FL, for Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals.Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.PER CURIAM:
Maria Gladys Alhuay petitions for review of the Board of Immigration Appeals' (“BIA”) order affirming (1) the Immigration Judge's (“IJ”) decision that she was removable, and (2) the IJ's denials of Alhuay's applications for a waiver of removability and cancellation of removal. After oral argument and review of the record, we deny Alhuay's petition in part and dismiss it in part.
Before discussing Alhuay's testimony at her multiple hearings, we review the facts revealed in certain documents and declarations.
Alhuay is a Peruvian citizen. In 1975, Alhuay married Carlos Saldana in Peru. In 1990, Alhuay entered the United States without documentation or inspection.
In 1992, while still married to Saldana, Alhuay married José Diaz in the United States. In February 1993, Alhuay and Diaz were divorced.
In April 1993, Alhuay married Abel Quesnay, a lawful permanent resident, in Nevada. In her 1993 application for a marriage license to Quesnay, Alhuay stated that this was her second marriage and that her first marriage ended in divorce in February 1993.1 During their marriage, Quesnay and Alhuay had one son together, Jesse Quesnay.
In April and May 1993, Quesnay prepared and filed a Petition for Alien Relative on Alhuay's behalf. In April 1993, Alhuay signed a “Biographic Information” form, which was filed in connection with her 1993 Petition for Alien Relative. That form had a blank space to fill in the names of “FORMER HUSBANDS AND WIVES.” The statement “NEVER MARRIED BEFORE” was written in that blank.
In October 1995, Alhuay filed for special immigrant status as a self-petitioning spouse of an abusive citizen or lawful permanent resident (Quesnay). Her self-petition was approved in August 1996. In February 1997, Alhuay and Quesnay were divorced, and the Superior Court of King County, Washington, issued a restraining order against Quesnay as a result of domestic violence against Alhuay.
In May 1997, Alhuay again married Quesnay in Nevada. In her second, 1997 application for a license to marry Quesnay, Alhuay stated that this was her second marriage and that her first marriage ended in divorce in February 1997. 2
In October 1997, Alhuay applied to adjust her status to lawful permanent resident based on her approved self-petition. The application to adjust her status asked about prior arrests. Alhuay listed one arrest for driving under the influence and one for a domestic-violence incident. In support of her application to adjust her status, Alhuay signed and submitted a “Biographic Information” form dated October 22, 1997. The form lists Quesnay, Diaz, and Saldana as former husbands.
In December 1997, Alhuay's application to adjust her status to lawful permanent resident was approved based on her being the battered “spouse” of Abel Quesnay, a lawful permanent resident. In March 2000, Alhuay and Quesnay were divorced again, and Alhuay obtained another restraining order against Quesnay.
In 2005, Alhuay obtained a final Peruvian decree of divorce from Saldana, based on proceedings begun in 2003.3 In 2005, Alhuay applied for naturalization. In 2006, Alhuay married Luis Condori. Alhuay remains married to Condori.
On January 31, 2007, Alhuay was served with a Notice to Appear (“NTA”). The NTA alleged that: (1) Alhuay's status was adjusted on December 15, 1997, (2) Alhuay sought to obtain a benefit under the INA by fraud or willful misrepresentation of a material fact when she “filed as the battered spouse” of Quesnay and concealed the fact that she was still married to Saldana, which made her ineligible for adjustment of status as a battered spouse, and (3) at the time of her application for adjustment of status, Alhuay intended to remain permanently in the United States and did not possess valid entry or identity documents.
Based on these allegations, the NTA charged that Alhuay was removable under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an inadmissible alien: (1) under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), due to her fraud or willful misrepresentation in her adjustment-of-status application; and (2) under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), because she did not possess a valid visa or other entry document.
Alhuay responded to the allegations in the NTA at her first hearing before the IJ on May 30, 2007. At that hearing, Alhuay was represented by James McTyier, who did not request an interpreter. Alhuay admitted that she was a native and citizen of Peru and that her status was adjusted to lawful permanent resident on December 15, 1997, as alleged in the NTA. She denied the other charges and allegations. The hearing was continued to give the government time to prepare documentary evidence.
A subsequent removal hearing was held on June 26, 2008. At that hearing, Alhuay's lawyer, James McTyier, requested an interpreter. The IJ responded that an interpreter was not immediately available, but he would try to locate one. The hearing proceeded, and before Alhuay was sworn in, the IJ emphasized that if Alhuay did not understand a question, she should tell him. Alhuay responded that she understood the IJ's instructions.
Before the interpreter arrived, Alhuay testified that she received permanent-resident status as the battered spouse of Quesnay, and that when she married Quesnay, she thought she was divorced from Saldana. Alhuay admitted that when she married Quesnay, she was not officially divorced from Saldana. Alhuay stated that she and Saldana had gone to her family lawyer in Peru and signed the papers but that the lawyer never finished the paperwork.
After the interpreter arrived, Alhuay admitted that, at her 1997 interview for permanent-resident status, she told the interviewer that she was divorced from Saldana. However, she discovered that her attorney had not completed the Saldana divorce only after immigration authorities asked her to provide the Saldana divorce decree. Alhuay also submitted an affidavit from Saldana, in which he verified that he and Alhuay went to an attorney in Peru to process their divorce but learned years later that the divorce had not been finalized. When the IJ asked Alhuay about her representation on her 1993 Biographic Information form that she was never married, Alhuay replied that Quesnay completed the form for her, and they thought the blank for “FORMER HUSBANDS AND WIVES” referred to Quesnay's spouses, not Alhuay's. Although Alhuay admitted that she signed the form, she testified that Quesnay wrote the answers and that she did not look at the answers because she trusted him.
The IJ discussed Alhuay's 1993 application for her first Nevada license to marry Quesnay. The IJ noted that this 1993 license application would either support her contention that she thought she was divorced from Saldana or contain misrepresentations. The IJ thought the government had already met its burden at that point but continued the hearing to allow Alhuay to obtain the 1993 marriage license application.
At the next hearing, on July 30, 2008, McTyier again represented Alhuay. No interpreter was present. The IJ reviewed Alhuay's 1993 marriage license application and noted that it did not “help[ ] the case.” In her 1993 application to marry Quesnay, Alhuay had disclosed neither her first marriage, to Saldana, nor her belief that she was divorced from Saldana. The IJ stated that it appeared Alhuay had made misrepresentations on the application and “engaged in marriage fraud” because “[i]f she thought she was divorced in Peru, she would have told the State of Nevada [in the 1993 marriage license application] that she was divorced in Peru.” The IJ concluded:
[Alhuay] told me during direct testimony that she thought she was divorced to somebody in Peru and she submitted a document from that person saying that she thought she was divorced. However, when she gets remarried in Nevada, you've just given me a document here that says she believes that she was divorced in Nevada on February 25, 1993. There's no basis for that. That's not her testimony and it's further misrepresentation in the case.4
On the issue of removability, the IJ ruled that “the Government ha[d] sustained its burden in [the] case.” The IJ sustained the charges in the NTA, instructed Alhuay to file any applications for relief from removal, and set another hearing date.
The proceedings continued on November 12, 2008. At that hearing, Miguel Mendizabel represented Alhuay. An interpreter was present for the entire hearing. Mendizabel questioned the IJ's basis for sustaining the removal charges against Alhuay and questioned the previous findings of fraud and misrepresentation. The IJ emphasized his finding that Alhuay “sat [t]here under oath and lied” about her belief that she was divorced in Peru. The IJ explained that his conclusion was based on Alhuay's misrepresentations of her marital history in both the documentary record and her hearing testimony.
Following the hearing, Alhuay applied for a waiver of removability under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H), and cancellation of removal under INA § 240A, 8 U.S.C. § 1229b. A hearing on these applications was set for ...
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