Lamim v. Holder
| Decision Date | 29 July 2014 |
| Docket Number | No. 13–2451.,13–2451. |
| Citation | 760 F.3d 135 |
| Parties | Alexon Nassaralla LAMIM, Petitioner, v. Eric H. HOLDER, JR., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Walter J. Gleason, Jr. on brief for petitioner.
Karen L. Melnik, Office of Immigration Litigation, United States Department of Justice, Stuart F. Delery, Assistant Attorney General, Civil Division, and Douglas E. Ginsburg, Assistant Director, on brief for respondent.
Before THOMPSON, KAYATTA and BARRON, Circuit Judges.
Petitioner Alexon Nassaralla Lamim, a native and citizen of Brazil, seeks review of a decision of the Board of Immigration Appeals that denied his request to alter his permanent resident status so that it would no longer be conditional. Lamim was accorded that status by virtue of his marriage to a citizen of this country. To succeed in his request, Lamim was required to show that he entered into his marriage in good faith. Because substantial evidence supports the Board's finding that he did not make that showing, we deny Lamim's petition for review.
Lamim lawfully entered the United States on a tourist visa in February 2001. He married Tracie Marie Silva, a United States citizen, on May 24, 2004. The governmenttherefore granted him conditional permanent resident status. See8 U.S.C. § 1186a(a)(1). That status applies to non-citizens like Lamim who marry citizens of this country. Because the permanent resident status is conditional, however, immigration authorities may later revoke it—and then institute removal proceedings—on the ground that the underlying marriage was a sham. See id. § 1186a(b)(1)(A)(I); id. § 1227(a)(1)(D)(I).
To protect against this possibility, a married couple may take steps to render the non-citizen spouse's status no longer conditional. In particular, they may jointly petition the Secretary of Homeland Security for this change in status during the ninety-day period before the second anniversary of the non-citizen spouse's having obtained conditional permanent resident status. See id. § 1186a(c)(1)(A), (d)(2)(A). If no petition is filed in that time period, the non-citizen spouse may still succeed in securing the change in status. To do so, the spouse must seek what is known as a “hardship waiver.” See id. § 1186a(c)(4). If the pair have divorced, the request for the waiver need not be filed jointly with the citizen spouse. Instead, the non-citizen spouse may file singly. To qualify for the waiver, however, the noncitizen spouse must show that he was not at fault in failing to file by the deadline and that “the qualifying marriage was entered into in good faith by the alien spouse.” Id.
Lamim and Silva did not seek to convert Lamim's status by the deadline, and, in November 2007, their marriage ended. When Lamim filed for a hardship waiver in January 2008, therefore, he did so on his own. See id. § 1186a(c)(4)(B).
The United States Citizenship and Immigration Service denied Lamim's waiver request on August 6, 2010. The Department of Homeland Security served Lamim with a Notice to Appear in removal proceedings that same day. See id. § 1227(a)(1)(D)(I). Lamim renewed his waiver request in the immigration court, but the outcome was the same. The Immigration Judge found that Lamim had failed to make the showing necessary to justify a hardship waiver. Lamim appealed, but the Board of Immigration Appeals affirmed. In doing so, the Board concluded that Lamim had failed to establish that he entered into the marriage with Silva in good faith. See id. § 1186a(c)(4)(B). Lamim now seeks review of that decision.
The burden of proof is on Lamim to show that he entered into the marriage with Silva in good faith. McKenzie–Francisco v. Holder, 662 F.3d 584, 587 (1st Cir.2011). He can satisfy that burden by introducing “evidence relating to the amount of commitment by both parties to the marital relationship.” 8 C.F.R. § 1216.5(e)(2).
While Lamim makes some effort to argue that the record shows that he in fact met his burden, his central challenge to the denial of his waiver request is that it rests on a legal error. Lamim roots that error in the oral decision of the Immigration Judge, which the Board affirmed. Lamim contends that the Immigration Judge, and thus the Board, erroneously relied on the fact that, during his marriage to Silva, he had an affair that resulted in a child with the other woman. According to Lamim, therefore, the denial of his request rested on an improper moral judgment regarding his adultery rather than on a fair analysis of the evidence in support of his waiver request.
But Lamim's characterization of the basis for the denial of his request is wrong. The Board did affirm the Immigration Judge, but it did not adopt its opinion. Accordingly, “[t]he Board's determination ... is the final agency decision under review.” Martinez v. Holder, 734 F.3d 105, 111 n. 15 (1st Cir.2013). And while the Board did mention the affair and the resultant child in reaching its conclusion, it did so only in the course of scrutinizing Lamim's evidence in light of the Justice Department's guidance about what may constitute “evidence relating to the amount of commitment by both parties to the marital relationship.” 8 C.F.R. § 1216.5(e)(2). That guidance instructs immigration authorities to evaluate “good faith” on the basis of documentation concerning the couple's cohabitation, the degree to which the couple's finances were commingled, any children born to the marriage, or other pertinent evidence. Id. § 1216.5(e)(2)(i)–(iv). And that was precisely the evidence the Board looked for in evaluating Lamim's waiver request.
With regard to documentation relating to financial commingling, id. § 1216.5(e)(2)(i), the Board found that Lamim did submit tax returns for 2005 and 2006, but it concluded that those returns did not help Lamim because they showed that he filed as “married filing separately.” And while the Board determined that Lamim had shown that he and Silva did have a joint bank account, it noted that Lamim admitted on cross-examination that the account was joint in name only: Silva neither drew from nor deposited into the account. With regard to documentation concerning cohabitation, id. §...
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...Cir.2015). The parties agree that Valdez bore the burden of showing that he entered into his marriage in "good faith." Lamim v. Holder, 760 F.3d 135, 137 (1st Cir.2014). Whether or not this burden has been met is a call for the IJ or BIA to make in the first instance, as the "judgment about......