Mendes v. Immigration & Naturalization Serv.

• Decision Date: 05 October 1999
• Docket Number: No. 99-1226,99-1226
• Citation: 197 F.3d 6
• Parties: (1st Cir. 1999) AGNELO MENDES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 6

197 F.3d 6 (1st Cir. 1999)

AGNELO MENDES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-1226.

United States Court of Appeals for the First Circuit.

Heard Oct. 5, 1999.

Decided November 24, 1999.

PETITION FOR REVIEW OF THE DECISION BY THE BOARD OF IMMIGRATION APPEALS.

[Copyrighted Material Omitted] Jeremiah Friedman, with whom Maureen O'Sullivan, Harvey Kaplan, Ilana Greenstein and Kaplan, O'Sullivan & Friedman, LLP were on brief, for petitioner.

William E. Michaels, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General and H. Bradford Glassman, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

TORRUELLA, Chief Judge.

This case involves three marriages, four separate visa petitions, and immigration proceedings spanning more than fifteen years. Petitioner Agnelo Mendes appeals from the decision of the Board of Immigration Appeals ("BIA") (1) to deny his Motion to Remand for adjustment of status to permanent resident under the Immigration and Nationality Act, 8 U.S.C. §§ 245 (1996) ("INA"); (2) to affirm Immigration and Naturalization Service's ("INS") denial of the joint petition to remove conditional residence under section 216 of the INA; and (3) to affirm the INS's denial of suspension of deportation under INA § 244(a), 8 U.S.C. § 1254 (repealed by IIRIRA § 308(b)(7), 110 Stat. 3009-615 (1996)).

Pursuant to our recent opinion in Bernal-Vallejo v. INS, 195 F.3d 56 (1st Cir. 1999), we hold that § 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (IIRIRA), precludes jurisdiction over Mendes's claim that the BIA erred in finding that he has not demonstrated extreme hardship under INA § 244. Although we have jurisdiction to review petitioner's due process challenge to the BIA's finding of deportability, judicial review is barred because the petitioner failed to exhaust his administrative remedies.

Subsequent to the BIA's denial of the petitioner's Motion to Remand, the INS revoked the petitioner's visa, a necessary prerequisite to adjustment of status, rendering this issue moot. We give no further consideration to the scope of our jurisdiction to review the BIA's denial of the Motion at this time.

I.

Some background on the statutory and regulatory scheme for alien-citizen marriage is required to understand the pertinent facts of this case. Section 216 of the INA sets out the procedural requirements for acquiring lawful permanent resident status through a bona fide marriage to a United States citizen. After the citizen spouse files a visa petition and a petition for adjustment of status under INA § 245(d), the alien spouse may be granted a two-year conditional lawful permanent resident status. See INA § 216(a)(1). To remove the conditional status, the citizen and alien must file a joint petition¹ (Form I-751) and appear for a personal interview. See INA §§ 216(c)(1) & (d). Within 90 days, the INS must issue a determination as to whether the facts alleged in the petition are true with respect to the qualifying marriage. See INA § 216(c)(3)(A). The burden at this stage is on the petitioner. If the joint petition is denied, the alien's conditional status is terminated, § 216(c)(3)(C), and the alien is deportable under INA § 241(a)(1)(D)(i). See Matter of Lemhammad, 20 I. & N. Dec. 316, 1991 BIA LEXIS 13, at *3. If the alien seeks review of the District Director's decision in the deportation proceeding, the burden of proof is placed on the INS to establish by a preponderance of the evidence that the facts in the petition are not true, in other words that the marriage was entered into for the purpose of procuring his entry as an immigrant. See § 216(c)(3)(D); Matter of Lemhammad, 20 I.& N.Dec. at 317.

For the sake of efficiency, we summarize the facts as follows. Petitioner Agnelo Mendes, a native and citizen of Cape Verde, first entered the United States on July 16, 1982, as a nonimmigrant visitor. His first marriage to U.S. citizen Indiana Burgo took place approximately three weeks later, on August 8, 1982, and produced a son on April 30, 1983. Although a visa petition was filed immediately, Burgo withdrew it, informing the INS that she and petitioner had married for immigration purposes. The petitioner was placed into deportation proceedings and was granted voluntary departure by October 25, 1983. Burgo filed a second visa petition, but it was denied based on the petitioner's failure to prove that he had a bona fide marriage. The BIA affirmed that decision on January 31, 1986.

On December 28, 1985, the petitioner reentered the United States as a nonimmigrant visitor, with the alleged intention of resolving his marriage with Burgo, but they divorced. On November 2, 1987, the petitioner married U.S. citizen Renee Duarte, who filed a third visa petition on his behalf. On December 13, 1989, Duarte and the petitioner filed a joint petition to remove the conditional basis of his status (Form I-751), which is the subject of the instant appeal.

The INS subsequently terminated the joint petition based on several inconsistencies in the information provided with the joint petition and in the personal interview. For example, Duarte could not identify friends of the petitioner who submitted affidavits on behalf of the couple; she was unfamiliar with her husband's bank account; there were facts in dispute with respect to the petitioner's rent and whether Duarte and his child ever resided with him; the couple failed to provide joint tax returns and the birth certificate for their child; and the petitioner did not acquire family medical coverage until 1990, despite the fact that Duarte was expecting a child and he had claimed one of his other children as a dependent in his tax returns. On March 29, 1993, the District Director informed the couple,

[b]ecause of the absence of any convincing evidence showing the marriage to have been entered into in good faith, it is concluded that you have failed to sustain your burden to reverse a denial of the application before us and that your marriage was entered into for the sole purpose of securing an immigration benefit.

As a result, INS terminated the petitioner's conditional resident status pursuant to § 216(c)(3) and placed him in deportation proceedings for the second time. During the proceedings, the petitioner, who had separated from Duarte in 1990, became romantically involved with U.S. citizen Mara Fortes, who gave birth to his child in February 1994.

At the conclusion of the deportation hearing on December 28, 1993, the Immigration Judge ("IJ") affirmed the denial of the joint petition and denied the petitioner's application for suspension of deportation. The IJ found that the petitioner's testimony was not credible, and that he entered his marriage with Duarte for immigration purposes. In reaching this conclusion, the IJ relied on the inconsistencies in the petitioner's testimony regarding his prior addresses and his children and the fact that the petitioner and his spouse did not "have a lot of information concerning each other." The IJ ultimately found that the marriage was apparently "entered into for the purpose of obtaining Immigration benefit[s]," and that the petitioner "did not meet his burden of showing that it was a bona fide marriage."

The IJ denied the petitioner's application for suspension of deportation but granted his request for voluntary departure. It is evident from the IJ's opinion that she equivocated over the statutory requirement of good moral character, and despite her earlier finding that the petitioner's testimony was not credible, she reluctantly concluded that he "just barely" satisfied the good moral character requirement.² However, he failed to demonstrate that he or his family would suffer extreme hardship if he were deported. The IJ noted that he and his wife were separated and were filing for divorce, that he had provided little if any child support, and that he had frequently been absent from his children. His claims of economic distress were not extreme, and the IJ further commented that it was "somewhat disingenuous for [the petitioner] to claim that he would experience extreme hardship to be separated from his United States citizen child when he has voluntarily abandoned just about every child he has ever fathered at one point or another." In her final analysis, the IJ weighed his request for relief against his "consistent violation of this country's immigration laws," including overstaying visas, working illegally, obtaining visitor visas with intention to remain, and finally his marriage to Duarte to procure immigration benefits. Despite these findings, she granted voluntary departure, because "he just misses falling under the definition of giving false testimony in order to obtain a benefit under the Act."³

The petitioner filed a timely appeal of the IJ's decision. While it was pending, the petitioner remarried Indiana Burgo on May 13, 1995, and a fourth visa petition was filed and approved. The BIA denied the petitioner's Motion to Remand for adjustment of status and affirmed the IJ's decision. In denying the Motion to Remand, the BIA considered the merits of his request for adjustment of status, and concluded that the positive factors of the granted visa, the relationship with his new wife and children, and strong work history, were outweighed by the adverse factors: "a host of evidence which indicates that the respondent has engaged in marriage fraud on two prior occasions and has attempted to derive immigration benefits from his prior marriages." Likewise, in its affirmance of deportability, the BIA relied on the IJ's findings that the petitioner was...