Guillory v. Lynch, 15-3005

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
PartiesCHRISTEL GUILLORY, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent
Docket NumberNo. 15-3005,15-3005
Decision Date16 November 2015

CHRISTEL GUILLORY, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent

No. 15-3005

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

November 16, 2015


NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0754n.06

ON PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS

OPINION

BEFORE: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*

BECKWITH, District Judge. Petitioner Christel Guillory petitions this Court to review the decision of the Board of Immigration Appeals ("BIA") finding that she abandoned her status as a lawful permanent resident of the United States. We find that substantial evidence supports the BIA's decision and, therefore, deny the petition for review.

I.

Petitioner Christel Guillory was born in Germany in 1952. In 1982, Petitioner married an American serviceman, Joseph Elliot. In September 1982, Petitioner gave birth to a daughter in an American Army hospital in Berlin. At about the same time, Petitioner was diagnosed with Crohn's disease and had two surgeries provided by the German healthcare system.

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In 1984, Petitioner and her daughter moved with Elliot to Fort Carson, Colorado. Petitioner became a lawful permanent resident as Elliot's spouse and received a green card under the name Christel Elliot. As a military spouse, Petitioner received free treatment for her Crohn's disease, including two more surgeries. In 1986, however, Petitioner and Elliot divorced and she lost her free healthcare. She then obtained healthcare through subsidized clinics in Colorado.

In 1988, Petitioner married Ricky Bowlds, a U.S. citizen. They lived in Colorado Springs. Petitioner testified that she did not get a new green card under her new name because it was too expensive. Petitioner divorced Bowlds in 2001, but not before picking up a conviction in Colorado for possession of marijuana with intent to deliver.

Later in 2001 Petitioner met her current husband, Lionel Michael Guillory. Petitioner became engaged to Guillory a few months afterward and they moved to Houston in the hopes of obtaining better healthcare for Petitioner. Guillory taught classes at Houston Community College but was ineligible for employer-sponsored healthcare. Therefore, in December 2002, Petitioner and Guillory moved to Germany where Petitioner could again use the German healthcare system to obtain treatment for her Crohn's disease.

Petitioner and Guillory were married in Germany in 2003. Guillory was not able to obtain full-time employment in Germany nor could he obtain German citizenship because he refused to learn to speak German. Instead, Guillory taught several political science courses for American online universities. Petitioner worked part-time at various jobs. Petitioner testified that there was no definite time table for returning to the United States - her return depended on

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whether her health could be completely restored in Germany or whether Guillory could obtain a job in the United States that provided health benefits.

Petitioner and Guillory lived in Germany continuously from 2003 to 2006. Guillory returned to Houston in 2006 and resumed teaching classes at Houston Community College. Petitioner continued to live in Germany. Between 2006 and 2008, Petitioner traveled to the United States ten times and returned to Germany. Petitioner re-entered the United States each time under the Visa Waiver Program ("VWP") instead of as a lawful permanent resident.1 Each time Petitioner returned to the United States under the VWP, she failed to disclose her prior controlled substance conviction on the I-94W form. Petitioner testified that she entered the country under the VWP instead of as a returning lawful permanent resident because she was afraid she would be held up and questioned at customs about her green card and admissibility status.2

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Petitioner and Guillory re-married in the United States. Petitioner testified that they did this to make it easier for her to get updated immigration documents. In 2008, Guillory obtained a permanent teaching position at Houston Community College and received health benefits. Petitioner and Guillory purchased a condominium in Houston in 2008 and four acres of land in Colorado in 2009.

In November 2008, Petitioner was stopped by immigration officers at the airport in Detroit attempting to enter the United States from Germany because she matched a criminal watch list. She admitted that she failed to disclose her prior controlled substance conviction. Petitioner also told the immigration officer that she did not intend to stay in the United States permanently at that time. After Plaintiff was denied entry under the VWP, she claimed re-entry as a lawful permanent resident. She was then paroled into the United States for removal proceedings. Plaintiff returned to Germany for Christmas that year and upon her re-entry to the United States immigration officers confiscated her green card.

The Department of Homeland Security ("DHS") issued Petitioner a notice to appear charging her with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien seeking admission without a valid immigrant visa or entry document and under 8 U.SC. § 1182(a)(6)(C)(i) as alien attempting to procure admission by making a fraudulent or willful misrepresentation of a material fact. In the event the DHS determined that she was inadmissible,

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Petitioner protectively filed applications for waiver of inadmissibility under former § 212(c) and § 212(i) of the INA.3

After conducting an evidentiary hearing on the notice to appear, the immigration judge ("IJ") issued a written decision finding that the government had proved by "clear and convincing evidence" that Petitioner had abandoned her LPR status. In reaching this conclusion, the IJ noted Petitioner's subjective intent to return to the United States when either her health improved or her husband obtained health insurance. The IJ observed, however, that neither of those events had a reasonable probability of occurring within a relatively short period of time. The IJ also found that Petitioner was able to manage her Crohn's disease in Colorado for a substantial period of time without health insurance and that she could have moved back to Colorado instead of Germany in order to obtain cheaper health care. As further evidence of intent to abandon her LPR status, the IJ cited the fact that Petitioner did not return to the United States at all between December 2002 and February 2006 and that between February 2006 and November 2008 she spent roughly half her time between the United States and Germany. Finally, the IJ cited the numerous times Petitioner used the VWP to enter the country instead of presenting her green card, her concealment of her criminal history on the I-94W form, and her admission to the

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customs officer that she did not intend to stay in the United States, as additional evidence of her intent to abandon her LPR status. These facts, the IJ concluded, showed that Petitioner's absence from the country was not a temporary visit abroad but rather evinced an intention to abandon her LPR status. Because she had abandoned her LPR status, the IJ found that Petitioner was removable as charged under § 1182(a)(7)(A)(i)(I) as an alien attempting to enter the country without a valid entry document. This finding also meant that Petitioner was ineligible for a waiver of inadmissibility.

The IJ also found that Petitioner was removable from the country pursuant to § 1182(a)(6)(C)(i) as an alien attempting to procure admissibility by willfully making a material misrepresentation of fact. In support of this finding, the IJ cited the numerous times Petitioner concealed her controlled substance conviction on the VWP form. While Petitioner argued that her misrepresentations were not material because the immigration officer admitted that she likely would have been paroled into the country had she admitted her conviction, the IJ concluded otherwise because it caused immigration officers to refer her for a secondary inspection and caused them to believe that she was an arriving alien. Moreover, the IJ found that Petitioner was ineligible for a hardship waiver of inadmissibility under § 212(i) because she was a VWP applicant. VWP applicants, the IJ noted, agree to waive their right to a removal hearing except for claims of asylum. Since Petitioner was a VWP applicant, the IJ concluded that she was per se ineligible for an extreme hardship waiver.

Petitioner filed a timely appeal of the IJ's decision to the BIA. She raised three assignments of error in her appeal. First, Petitioner argued that the IJ applied the wrong burden

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of proof in finding that she abandoned her LPR status. Petitioner argued that the IJ erred by using the "clear and convincing evidence" standard when the correct standard is the higher "clear, unequivocal, and convincing evidence" standard. This error alone, Petitioner argued, warranted a remand to the IJ to apply the correct standard. Second, Petitioner argued that the immigration judge erred in finding that she had abandoned her LPR status. Third, Petitioner argued that the IJ erred in finding that she was not eligible for waiver of inadmissibility.

The BIA issued a written decision dismissing Petitioner's appeal. The BIA adopted the IJ's findings of fact as not being clearly erroneous. The BIA agreed with Petitioner that the IJ applied the wrong standard in finding that she had abandoned her LPR status. The BIA concluded, however, that because it reviews de novo whether a party has satisfied its burden of proof, it could correct the IJ's error by applying the correct "clear, unequivocal, and convincing evidence" standard on appeal. Then, citing the same facts as the IJ, the BIA concluded that the DHS had shown by clear, unequivocal, and convincing evidence that Petitioner had abandoned her LPR status. The BIA also concluded that Petitioner's abandonment of her LPR status meant that she...

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