Oropeza-Wong v. Gonzales, 03-71446.

• Decision Date: 10 May 2005
• Docket Number: No. 03-71446.,03-71446.
• Citation: 406 F.3d 1135
• Parties: Ysidro Alberto OROPEZA-WONG, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

406 F.3d 1135

Ysidro Alberto OROPEZA-WONG, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-71446.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2004.

Filed May 10, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Adolfo Ojeda-Casimiro, Salazar Law Offices, Seattle, WA, for the petitioner.

Susan K. Houser, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-714-990.

Before D.W. NELSON, REINHARDT, and THOMAS, Circuit Judges.

D.W. NELSON, Senior Circuit Judge.

Ysidro Oropeza-Wong ("Oropeza"), a Mexican national, petitions for review of a decision of the Board of Immigration Appeals ("BIA") which (1) denied him a statutory waiver of the joint filing requirement for removal of the conditional basis of his permanent resident status on the ground that he entered into his marriage to U.S. citizen Melissa Renteria¹ in bad faith, 8 U.S.C. § 1186a(c)(4)(B), (2) ordered him removed on the basis of marriage fraud, 8 U.S.C. § 1227(a)(1)(G)(i), and (3) denied his request for voluntary departure, 8 U.S.C. § 1229c.² Oropeza contends that he is entitled to have the conditional basis of his permanent resident status lifted because, although the marriage was dissolved within two years, he entered into it in good faith. He offers no separate argument with respect to the order of removal, but asserts that it was an abuse of discretion to deny him voluntary departure. The government contends that we do not have jurisdiction to entertain Oropeza's claims. We conclude that while we lack jurisdiction over Oropeza's voluntary departure claim, we retain jurisdiction over his challenge to the order of removal and to his underlying claim that, because his marriage was entered into in good faith, he is entitled to a statutory waiver that would result in his receiving permanent resident status. We further conclude, however, that the BIA's rejection of that underlying claim is supported by substantial evidence. We therefore dismiss the petition in part and deny it in part.

I. Factual and Procedural Background

Oropeza met Renteria in January 1993 when both worked at the same company. He testified that after dating for about one year, the two were married in a civil ceremony in Mount Vernon, Washington, on April 14, 1994. According to Oropeza, following their marriage, he and Renteria lived with her family until November 1994, when they were able to move into an apartment of their own. He added that in January 1995 he left Washington to take a temporary job in Alaska, where he spent three to five weeks. Oropeza stated that in May 1995, he confronted Renteria with his suspicion that she was being unfaithful to him, and that, after Renteria suggested they divorce, the two separated in June 1995. The marriage ended in divorce on November 27, 1995, nineteen months after it began.

The Immigration and Naturalization Service ("INS") granted Oropeza conditional permanent resident status on September 15, 1994, and terminated that status on September 15, 1996. On August 16, 1996, Oropeza filed a Petition to Remove the Conditions on Residence (hereinafter "Form I-751") with the INS. Because, under the statute, an alien is not permitted to file the requisite joint petition with an exspouse, Oropeza applied for a statutory waiver of the joint filing and interview requirements on the ground that his was a good faith marriage that had been terminated by divorce. See § 1186a(c)(4)(B). Oropeza's application was denied on June 3, 1998. On June 10, 1998, he was served with a Notice to Appear, stating that his conditional resident status had been terminated and charging him with being subject to removal for marriage fraud under § 1227(a)(1)(G)(i).

At his removal hearing, Oropeza sought review of the denial of his statutory waiver and a determination that he was entitled to permanent resident status and was therefore not removable. He was the sole witness to testify. The government presented no witnesses. In addition to testifying, Oropeza provided documentary support to show that he entered his marriage in good faith, including: a jointly filed tax return; a lease for an apartment dated November 1994; eight canceled checks from a joint account; telephone bills listing Oropeza and Renteria as residing at the same address; an application for life insurance; and an application for vehicle title. Some of these documents were unsigned by Oropeza and Renteria, including the lease; there was no evidence that others, such as the applications for life insurance or automobile title, had been filed. Oropeza also provided a letter from a nurse who had treated him over an extended period of time stating that his wife had accompanied him on most office visits, and letters that Renteria had written to him during periods of separation.

The hearing also addressed aspects of Oropeza's life before and after his marriage to Renteria that raised questions as to his credibility, including his failure to list his children on forms filed with the INS or to mention them in an interview with immigration officials, and his relationship with his current wife, Edith Solis ("Solis"). Prior to his marriage to Renteria, Oropeza fathered two children in Mexico: Imelda, born in 1984, and Alberto, born to Oropeza and Solis in 1987. The government questioned Oropeza about the failure to list his children both on the petition that Renteria filed on his behalf and on the first Form I-751 that he, himself, filed. Oropeza stated that Renteria knew about his children but chose not to list them and that the attorneys who had filled out his I-751 had omitted the children due to an error. Oropeza also testified that he did not mention his children during his interview with the INS examiner because he thought that they were not relevant to the immigration decision as they were not U.S. citizens.

The Immigration Judge ("IJ") also questioned Oropeza about INS records of a 1989 detention in Anchorage, Alaska, prior to his marriage to Renteria, focusing on the statements on the forms that indicated that Solis, whom Oropeza was apprehended with, was his wife. Oropeza responded that he was not married to Solis at the time, and that, although Solis would sometimes refer to him as her "husband," she was his "girlfriend." After his separation from Renteria, Oropeza returned to Mexico and resumed a relationship with Solis. They underwent a marriage ceremony in Alaska on April 4, 1997.

In a written opinion, the IJ found that Oropeza was not a credible witness because of his failure to list his children on the INS forms and mention them during his interview, the inconsistencies in his testimony about Solis, and his demeanor during cross-examination. The IJ also stated that Oropeza's decision to return to Mexico after his divorce to seek out Solis suggested that "respondent appeared to have married Melissa [Renteria] solely for his papers and then he was going to return to Edith Solis." The IJ commented on Oropeza's departure for Alaska within eight months of his marriage to Renteria, and on the lack of any corroborating testimony about the bona fides of the marriage by family or friends. She concluded that the marriage had not been entered into in good faith and denied Oropeza the statutory waiver. She further found that the INS had established Oropeza's removability for marriage fraud by "clear, convincing, and unequivocal evidence" and denied his request for voluntary departure.

The BIA affirmed the IJ's decision in a written opinion dated March 5, 2003. The BIA found that the IJ's adverse credibility determination was supported by the record, relying specifically on the inconsistencies between Oropeza's 1989 statements to immigration officials about his marital status with Solis, his failure to disclose the existence of his children on both his first Form I-751 and during his interview with an INS official, and his inconsistent and weak testimony before the IJ.

In its evaluation of the bona fides of Oropeza and Renteria's marriage, the BIA emphasized Oropeza's failure to explain the context of the undated letters from Renteria, particularly given the brevity of the time that, according to Oropeza, he spent in Alaska. The BIA also noted that the documentation submitted at the hearing revealed three addresses for the couple during the course of their marriage, while Oropeza's testimony only mentioned two residences. The BIA concluded that the documentation did not establish that the couple "actually lived together or shared a life as husband and wife." Specifically, the BIA pointed to the facts that the lease agreement was unexecuted and that the cancelled checks did not include a rent payment.

The BIA stated that the evidence "consist[ed] mainly of incredible and meager testimony ... [and] unexplained evidentiary gaps...." It therefore concluded that Oropeza did not provide sufficient evidence to demonstrate that he entered his marriage in good faith and affirmed the denial of the statutory waiver and the order of removal for marriage fraud. The BIA also affirmed the IJ's decision not to grant Oropeza voluntary departure.

II. Standard of Review

We review de novo the jurisdictional limitations of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). Where the BIA conducts a de novo review and issues its own decision, we review the BIA's decision and not that of the IJ. Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). We review the BIA's legal conclusions de novo and its factual determinations for substantial evidence. Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir.2004).

III. Discussion

A. Jurisdiction

The parties disagree on two basic threshold jurisdictional questions. The first is easily...