Ettienne v. Holder

• Decision Date: 05 October 2011
• Docket Number: No. 10–3896.,10–3896.
• Citation: 659 F.3d 513
• Parties: Nora Adele ETTIENNE, Petitioner,v.Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

659 F.3d 513

Nora Adele ETTIENNE, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 10–3896.

United States Court of Appeals, Sixth Circuit.

Argued: July 19, 2011.Decided and Filed: Oct. 5, 2011.

ARGUED: Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Papu Sandhu, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Margaret W. Wong, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Papu Sandhu, United States Department of Justice, Washington, D.C., for Respondent.Before: ROGERS, McKEAGUE, and DONALD, Circuit Judges.^*

OPINION

ROGERS, Circuit Judge.

Nora Ettienne, a citizen of Trinidad, petitions for review of the Board of Immigration Appeals' denial of her application for cancellation of removal under 8 U.S.C. § 1229b. The Board, adopting the reasoning of the immigration judge, denied Ettienne's petition on the basis that she had not demonstrated that her United States citizen husband and children would suffer exceptional and extremely unusual hardship as a result of her removal. Although Ettienne's case is very sympathetic, the explicit preclusion of review of cancellation denials applies notwithstanding her argument that the Board failed to follow its own precedent in this case. Her petition must therefore be dismissed for lack of jurisdiction.

Ettienne entered the United States for a track-and-field competition in 1987, when she was 16 years old. Ettienne remained beyond the expiration of her visa, with the goal of winning a college scholarship for track and field. A United States track coach acted as her caretaker. Ettienne enrolled in high school in Brooklyn and remained an extremely competitive athlete.

Before college, Ettienne was involved in a marriage fraud scheme in which Thomas Bumpus, a United States citizen, received money to claim to be married to her. A marriage ceremony occurred in February of 1989, but another woman had represented herself to be Ettienne. Ettienne and Bumpus only met later, after the spousal petition for permanent residency had been filed. When Ettienne and Bumpus went to the INS offices for the interview assessing the bona fides of the marriage, both ended up signing affidavits admitting that the marriage was a sham entered into only to procure a green card for Ettienne. Ettienne contends that her coach, who she claims was domineering and abusive, arranged the fraudulent marriage without her knowledge, and that she only learned the true nature of her petition when she arrived in Philadelphia for the green card interview.

Although Ettienne signed the affidavit admitting to marriage fraud in 1990, no order of removal was issued, and there is no evidence that she had any interaction with immigration authorities for the next decade. Ettienne earned a full athletic scholarship to Michigan State University, where she enrolled in 1991. She participated in the track team and majored in human resources, although she fell three classes short of graduation. Through the track team, Ettienne met Jarion Bradley, a United States citizen. The two married in 1999 and have two sons. Ettienne and Bradley work full-time and own a home. Their sons are strong students and are active in sports and other extracurricular activities.

Ettienne came back onto the immigration authorities' radar sometime around 2001. This may have happened as a result of her efforts to procure permanent residency through her marriage to Bradley. Ettienne filed for adjustment of status based on marriage to a United States citizen in April of 2001, but the request was denied because of Ettienne's involvement in the marriage fraud. Under 8 U.S.C. § 1154(c), a person who has previously attempted to gain permanent residency through a fraudulent marriage is barred from procuring an immigrant visa, regardless of other eligibility. Therefore, even though the validity of Bradley and Ettienne's marriage is not questioned, the marriage cannot provide a basis for Ettienne to achieve permanent residency.

On December 6, 2001, INS issued Ettienne a Notice to Appear, alleging that she was removable for being in the United States without permission, in violation of 8 U.S.C. § 1227(a)(1)(B). The Government later added another ground of removability: participation in marriage fraud, in violation of 8 U.S.C. § 1227(a)(1)(G)(ii). Ettienne contested the marriage fraud allegation, but conceded removability based on her unauthorized presence. She sought relief in two forms: a second spousal petition and a request for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

At a hearing before an immigration judge (“IJ”), Ettienne presented her own testimony along with that of her husband, sons, mother-in-law, and a family psychologist. The testimony fell into two categories: (1) testimony explaining Ettienne's lack of involvement in the fraudulent marriage and (2) testimony as to the extreme effect Ettienne's deportation would have on the family. Her husband testified that he would not be able to afford their mortgage or student loan payments were he to lose Ettienne's income. He also stated that he was suffering from severe anxiety at the thought of losing his wife, and that he could not imagine life going on were they separated. Bradley also testified that there would be no opportunities for Bradley or the boys in Trinidad. Bradley, a civil engineer, testified that because he is not used to working in the metric system or under other countries' design standards, he doubted he would be able to find engineering work in Trinidad. He also testified that the schools in Trinidad would be nowhere near the quality of those in the United States, and that his sons would miss out on a great many opportunities were the entire family to relocate.

The psychologist, Dr. Hand, also offered testimony about the likely effects of Ettienne's removal on her husband and children. Hand testified that Bradley was already suffering from severe, debilitating anxiety that would only worsen upon Ettienne's removal. He also testified that he believed the older son was clinically depressed as a result of the stress of his mother's potential departure and exhibited signs of obsessive behavior resulting from anxiety. The psychologist further testified that the younger son had regressed to early childhood behaviors the parents had previously believed he had outgrown. Dr. Hand concluded that the regression was a clinically significant reaction to extreme stress. He further testified that if Ettienne were to depart, the boys would develop significant trust issues that would affect not only their personal relationships but also their perception of the fairness and legitimacy of institutions and authority figures. Dr. Hand testified that these effects were more severe than he would expect even under such difficult circumstances. Dr. Hand stated that the effects of the entire family's relocating abroad would be hard to predict, but that a relocation would likely be very damaging if things did not go well in the new country.

The IJ found that Ettienne had participated in marriage fraud. The IJ went on to assess whether Ettienne qualified for cancellation of removal, which allows an otherwise removable alien to remain in the United States because her departure would effect an exceptional and extremely unusual hardship on a citizen parent, spouse, or child. The IJ found that Ettienne met the first three statutory requirements for cancellation of removal: at least ten years of continuous presence in the United States, good moral character for the statutory period, and lack of certain criminal convictions, 8 U.S.C. § 1229b(b)(1)(A)-(C). However, the judge determined that Ettienne had not satisfied the final requirement—showing that her removal would cause Bradley or the children to suffer more hardship than would normally be expected under the circumstances, 8 U.S.C. § 1229b(b)(1)(D). Because Ettienne could not make the required hardship showing, the IJ denied the petition. The IJ noted that even if Ettienne had demonstrated exceptional and extremely unusual hardship, the IJ would still deny the petition in her discretion due to Ettienne's involvement in marriage fraud.

Ettienne appealed to the BIA, contesting the IJ's marriage fraud and hardship determinations. The BIA declined to address the marriage fraud finding, since Ettienne had conceded removability for being in the country without authorization. The BIA affirmed the IJ's finding that Ettienne had not demonstrated “exceptional and extremely unusual hardship” to Bradley or their children.

Ettienne appealed to this court, and the Government moved for dismissal based on lack of jurisdiction, citing the statutory bar on review of cancellation denials, 8 U.S.C. § 1252(a)(2)(B)(i). On October 12, 2010, a panel denied the Government's motion to dismiss on the grounds that Ettienne had claimed that the BIA failed to follow its own precedent in making the hardship determination. In spite of this ruling, the Government maintains, correctly, that Ettienne's appeal should be dismissed for lack of jurisdiction.

This court may revisit the issue of jurisdiction even after a motions panel has denied a motion to dismiss, see In re LWD, Inc., 335 Fed.Appx. 523, 526 (6th Cir.2009), and such a course is appropriate here to avoid erroneously exercising jurisdiction over a statutorily barred claim.

Ettienne argues that she is not subject to the statutory prohibition on review of the BIA's...