Boluk v. Holder

Decision Date07 June 2011
Docket NumberDocket No. 10–2396–ag.
Citation642 F.3d 297
PartiesNedim BOLUK, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Glenn T. Terk, Wethersfield, CT, for Petitioner.

Sarah Vuong, Trial Attorney (Emily Anne Radford, Assistant Director, on the brief), Office of Immigration Litigation, for Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.Before: JACOBS, Chief Judge, LEVAL and KATZMANN, Circuit Judges.DENNIS JACOBS, Chief Judge:

Petitioner Nedim Boluk, who became a conditional permanent resident after marriage to a United States citizen, sought a hardship waiver of the procedures for lifting the conditions of his residency after his marriage dissolved. The immigration judge and the Board of Immigration Appeals (the “BIA”) denied relief. Boluk seeks review of those decisions by this Court.

Ordinarily, the alien spouse and the citizen spouse must jointly petition for removal of the conditions on the alien spouse's residency. However, a hardship waiver of the joint petition requirements is available if the marriage, though entered in good faith, ends in divorce prior to the point at which the alien must seek to lift the conditions on his residency. Boluk argues on appeal that the immigration judge and the BIA erred as a matter of law in placing upon him the burden of proving eligibility for a hardship waiver, in articulating the standard for demonstrating a good faith marriage, and in weighing the evidence of good faith that Boluk presented to the immigration judge.

We conclude that the allocation of the burden of proof was proper, that the agency articulated the proper legal standard for demonstrating a good faith marriage, and that the agency properly determined that Boluk was ineligible for the relief he sought. Accordingly, the petition for review is denied.

BACKGROUND

We recite the facts underlying this petition for review as recounted by Petitioner. In 1986, Boluk, a then–16–year–old native and citizen of Turkey, traveled to Canada to visit a relative. In Canada, he rented a boat that accidentally crossed the border and landed him in the United States “by mistake.” J.A. at 100. Boluk recalls being detained by immigration officials who “left [him] in some motel,” where he remained for two days. J.A. at 101. He then took a bus to New York, roomed with his brother in West Haven, Connecticut, and began working at the Blue Sky Diner. J.A. at 102–03. Also employed by the diner was Ms. Karen Colangelo. J.A. at 79, 103, 106.

At first sight, Boluk “fe[lt] like [he was] in love with” Ms. Colangelo. J.A. at 79. Six or seven months later, they started dating. J.A. at 80. Boluk communicated with Ms. Colangelo with his “little English,” hand gestures, and the drawing of pictures. J.A. at 106. Boluk confided his love for Ms. Colangelo, J.A. at 80, and knew she cared because she told him she “like[d] him and “love[d] him. J.A. at 80, 81.

In 1988, they married in Turkey. J.A. at 81. After the wedding, the couple stayed in Turkey for about a month, until Ms. Colangelo returned to Connecticut; Boluk stayed on in Turkey for about a year as he had a “hard time” procuring a visa. J.A. at 82. Upon Boluk's return to the United States in 1989 as a lawful conditional resident, J.A. at 143, Ms. Colangelo met him at the airport and was very happy to see him. J.A. at 83–84. But a “couple of days later” Boluk realized Ms. Colangelo was “not happy,” and she expressed resentment that he had remained so long in Turkey. J.A. at 84. At this point, Boluk learned Ms. Colangelo was using drugs; she sometimes “stayed [out] all night,” sometimes never came home at all, and sometimes did not come to work. They began to have “big arguments.” J.A. at 85, 86. Ms. Colangelo left Boluk in 1989, J.A. at 86–87, 93–94, and he took up with a Turkish woman (with whom he has a child who was born in the United States). J.A. at 115–16.

In 1994, Boluk filed an I–751 Petition with United States Citizenship and Immigration Services (“USCIS”) to remove the conditions of his residence. J.A. at 116–17. Absent some specified ground of waiver, an I–751 Petition must be signed by both spouses attesting to a bona fide marriage. Boluk's I–751 Petition was signed jointly by himself and Ms. Colangelo, and it indicated that they were living together notwithstanding that their relationship had ended in 1989. J.A. at 119. Following submission of the Petition, an interview was scheduled by USCIS. Ms. Colangelo failed to appear. J.A. at 118. In 1998, the (purportedly) joint petition was denied by USCIS. J.A. at 143.

During the pendency of his I–751 Petition, Boluk had filed for divorce in 1996. In 2002, his divorce became final. J.A. at 118–19. That year, he again filed an I–751 Petition to remove the conditions of his residence, this time requesting a waiver of the joint filing requirements on the ground that his marriage, though ended in divorce, had been entered in good faith. J.A. at 143.

In 2006, Boluk was served with a Notice to Appear for removal proceedings, which charged him as an alien whose conditional resident status had expired. J.A. at 184. In 2007, Boluk's request for a waiver of the joint filing requirement of the I–751 Petition was denied on the ground that he failed to provide evidence to support his claim that his marriage was entered into in good faith. J.A. at 144.

Boluk appeared before an immigration judge and conceded removability, but requested relief in the form of review of the USCIS decision denying his 2002 I–751 Petition to remove the conditions on his residency. J.A. at 17–18. The immigration judge held a hearing at which Boluk testified. At this hearing, the immigration judge also received the testimony and affidavits of two individuals who had worked with Boluk, along with an affidavit of a third individual who had occasion to observe the relationship between Boluk and Ms. Colangelo. After the hearing, the immigration judge denied Boluk's application for review of the USCIS decision and ordered Boluk's removal to Turkey. J.A. at 26. The immigration judge ruled that, pursuant to INA § 216(c)(4)(B), 8 U.S.C. § 1186a (c)(4)(B), and its implementing regulation, 8 C.F.R. § 1216.5(e)(2), Boluk had the burden of establishing that his marriage was entered into in good faith and that he failed to submit sufficient evidence of his commitment to the marriage to sustain his burden. J.A. at 24–26.

As the immigration judge observed, Boluk presented no “documentary evidence of his commitment to his wife either before or after he immigrated to the United States.” J.A. at 24. The immigration judge cited facts that raised “general questions” about the bona fides of the relationship: Boluk was only sixteen when he met Ms. Colangelo; they lived together only briefly; and Boluk “did not really speak much English,” making it “very unclear to the Court how [Boluk was] able to ... effectively communicate” with Ms. Colangelo. J.A. at 24, 25. Moreover, the joint I–751 Petition submitted in 1994 presented a “serious issue” and cast “serious doubt on [Boluk's] overall credibility”; Boluk could not explain how this document came to be filed when he and Ms. Colangelo were separated or why the form indicated that they were living at the same address. J.A. at 25.

Boluk's timely appeal to the BIA argued that the immigration judge misplaced the burden of proof and had applied the wrong standard for assessing eligibility for a hardship waiver. J.A. at 10–11. As to burden, Boluk maintained that the statutory allocation is ambiguous and therefore should have been construed in his favor. As to the standard for assessing eligibility, Boluk argued (in a nutshell) that the immigration judge should have focused his inquiry on the circumstances leading up to the marriage and should not have considered whether Boluk was a committed husband, or the unfortunate course of the marriage after the wedding.

The BIA dismissed Boluk's appeal. In considering the burden of proof issue, the BIA relied on In re Mendes, 20 I. & N. Dec. 833 (BIA 1994), which ruled that Congress chose to shift the burden of proof onto the alien to show that even though the marriage failed, it was entered into in good faith.” Id. at 838. The BIA agreed with the immigration judge that Boluk failed to sustain his burden of proof. J.A. at 4.

As to the standard for assessing eligibility for a hardship waiver, the BIA framed the “central question” as “whether the bride and groom intended to establish a life together at the time they were married,” and reasoned that the level of commitment to the marriage thereafter had bearing on that question. J.A. at 4. As support, the BIA cited the regulation governing applications for waiver of the joint filing requirement based upon an alien's claim that a good faith marriage terminated in divorce. 8 C.F.R. § 1216.5(e)(2).

Boluk's timely petition for review renews his arguments that the immigration judge erred in placing on him the burden of establishing a good faith marriage and in articulating the standard for demonstrating a good faith marriage. Boluk also maintains that the immigration judge erred in weighing the evidence of good faith he presented.

DISCUSSION
I

“Where, as here, the BIA adopts the [immigration judge's] reasoning and offers additional commentary, we review the decision of the [immigration judge] as supplemented by the BIA.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009) (internal quotation marks omitted). We “grant Chevron deference to the [BIA's] construction of the INA.” Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.2001); see also Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “Under the Chevron standard, we adhere to Congress' purpose where the INA clearly speaks to the point in question,” and we examine de...

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