Surganova v. Holder

• Decision Date: 20 July 2010
• Docket Number: No. 08-1512.,08-1512.
• Citation: 612 F.3d 901
• Parties: Antonina SURGANOVA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

612 F.3d 901

Antonina SURGANOVA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-1512.

United States Court of Appeals Seventh Circuit.

Argued Oct. 6, 2009.

Decided July 20, 2010.

Maria T. Baldini-Potermin, Attorney (argued), Chicago, IL, for Petitioner.

Paul Fiorino, Attorney (argued), Department of Justice, Washington, DC, for Respondent.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Beginning in the late 1990's, an unlikely cast of characters assembled in Northwest Chicago and played out a tumultuous drama, which culminated in the Department of Homeland Security's initiation of removal proceedings against Antonina Surganova in 2004. Surganova, a 58-year-old Lithuanian native and Ukrainian citizen, had succeeded in changing her immigration status to that of a lawful permanent resident upon her marriage to Joseph Beaudion, a U.S. citizen, in April 2001. But, the government learned, things were not as they seemed. Working on a tip from Surganova's former son-in-law, Department of Homeland Security (“DHS”) charged Surganova with removability on the ground that she had procured the adjustment in her immigration status through marriage fraud. See 8 U.S.C. §§ 1182(a)(6)(C)(i) and 1227(a)(1)(A).

After a full hearing, the Immigration Judge (“IJ”) denied Surganova's motion to terminate the proceedings and concluded that she was removable because her marriage was a sham. On January 31, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ's decision. Surganova now petitions for review of the BIA's decision. Bearing in mind the deferential standard of review that applies here, we see no error in the BIA's conclusions. Nor do we find support for Surganova's assertion that her statutory and constitutional rights were violated during the removal proceedings. We therefore deny her petition.

I

Surganova traveled to the United States in 1997 to see her daughter Tatiana. During this visit, she met Beaudion and his roommate, Dr. Patrick Russo, who were neighbors of Tatiana and her husband Andrew Fleming. Surganova and Beaudion enjoyed each other's company and spent a great deal of time together. Although Surganova had to return to Ukraine, she came back to the United States in April 2000 on a visitor's visa to witness the birth of her granddaughter, Emily. Over the course of the next year, Surganova and Beaudion reestablished their relationship. (We are not concerned with the legality, or lack thereof, of this portion of her stay here.) Some time around April 9, 2001, Surganova was divorced from her second husband, Volodimir Volodimirovich Surganov. Two days later, Surganova and Beaudion announced their engagement to their family and friends at an Easter brunch; they married two weeks later in a simple civil ceremony. In November 2003, Surganova had her immigration status adjusted based upon her marriage to Beaudion.

The marriage had little effect on Surganova's living arrangements. She and Beaudion continued living in separate apartments. Surganova lived in a basement room in the apartment she shared with her daughter's family, while Beaudion and Russo, who had been roommates since 1992, resided in a nearby condo that Russo owned. Beaudion spent between two to four nights a week at Surganova's apartment.

Things went smoothly until Tatiana and Fleming went through a nasty divorce in the summer of 2004. Tatiana and Fleming traded allegations of adultery and abuse, and then, escalating the stakes, Fleming evicted Tatiana and Surganova from the apartment, wrote to DHS, and asserted that Surganova's marriage was a sham. On August 6, 2004, three Immigration and Customs Enforcement (“ICE”) agents went to Russo's house to interview Beaudion. During the course of the interview, Beaudion signed a sworn statement admitting that he had agreed to marry Surganova only so that she could stay in the United States. Soon thereafter, DHS initiated removal proceedings against Surganova.

Before the IJ, Surganova presented a large number of witnesses who all testified that they believed that she had entered into her marriage with Beaudion in good faith. Beaudion tried to retract his damaging statement, testifying that he had been under duress during his interview with the ICE agents. The IJ found Beaudion's first story more convincing, especially in light of the ICE agents' testimony that Beaudion appeared calm and composed during the interview. In concluding that Surganova entered into a sham marriage, the IJ placed significant weight on Beaudion's sworn statement and the fact that the couple had never lived together.

The BIA found ample support in the record for the IJ's conclusions and affirmed his decision. It rejected Surganova's contention that the IJ had erred in denying her request to obtain additional evidence from the ICE agents. In response to Surganova's argument that her counsel was ineffective, the BIA pointed out that she failed to follow the well-established procedural requirements for raising this type of claim. Even if this procedural misstep were excused, Surganova's claim still lacked merit, the BIA concluded, because she attacked her attorney only for making reasonable tactical decisions. Surganova then filed this timely petition for review, in which she challenges all of those rulings.

II

This court reviews questions of law de novo. See Sosebee v. Astrue, 494 F.3d 583, 589 (7th Cir.2007). In reviewing the BIA's conclusion that Surganova's marriage was fraudulent, we ask only whether the decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir.2007). This court “will reverse only if the evidence compels a contrary conclusion.” Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.2006) (citations omitted). Since the BIA's opinion adopts and supplements the IJ's opinion, we review both. See Patel v. Holder, 581 F.3d 631, 634 (7th Cir.2009).

To show that Surganova was removable under 8 U.S.C. § 1227(a)(1)(A), the government had to prove by clear and convincing evidence that Surganova procured an adjustment in her immigration status through marriage fraud, in violation of 8 U.S.C. § 1182(a)(6)(C)(i). See Woodby v. INS, 385 U.S. 276, 285-86, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.1991). In order to meet this burden, the government must demonstrate that the couple never intended to establish a life together. See King v. Holder, 570 F.3d 785, 788 (6th Cir.2009); cf. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir.2008). When assessing the couple's intent, courts look to both the period before and after the marriage. See Nikrodhanondha v. Reno, 202 F.3d 922, 925 (7th Cir.2000). The inquiry involves deeply personal questions, including those that probe the couple's courtship, their shared experiences, their living arrangements after marriage, and the degree to which they share assets and liabilities. See id.; Aioub, 540 F.3d at 612.

According to Surganova, the IJ improperly concluded that Surganova's and Beaudion's separate living arrangements supported a finding of fraudulent marriage. In her view, the couple's decision to reside in separate apartments can easily be explained. Both Surganova and Beaudion testified that they could not afford to rent a new place after they got married. While Surganova's room was big enough for two people, Beaudion felt that he could not permanently leave his condo because he was serving as a caregiver for Russo. Beaudion also testified that he wanted to stay at his condo because Russo's background as a podiatrist was helpful in dealing with Beaudion's own recovery from quadruple bypass surgery. For her part, Surganova testified that she did not want to leave her apartment because she was helping take care of her granddaughter and did not think that Russo would allow her to move into his small apartment. Finally, Surganova argues that the judge failed to give proper weight to the evidence showing that Beaudion spent between two to four nights a week at Surganova's apartment.

Surganova's biggest problem is that the account she has presented bears more than one reasonable interpretation, and the IJ did not adopt the one that she prefers. The IJ found that the couple's limited cohabitation after marriage weighed against a conclusion that the marriage was bona fide. He was unpersuaded that the size of Surganova's bedroom precluded Beaudion from moving in. The IJ did not separately address Beaudion's explanation for his continued stay at Russo's apartment, but this would be a problem only if that explanation compelled a different result. But it does not. While Beaudion initially helped Russo with his neuropathy when he moved in, Russo testified that he had given up on treatments for the condition. Russo said that Beaudion helped him by opening jars, doing laundry, and cooking. Nothing indicates that Beaudion would have been unable to assist with these tasks if he lived elsewhere, or that no one else could have filled in. Even if Russo helped Beaudion recover from his surgery, there were periods of time before and after the operation during which Russo's help may not have been necessary. Notably, Beaudion was apparently able to manage without Russo's assistance during the days and nights he spent with Surganova.

As the IJ pointed out, Surganova did not help herself either when it emerged that she had lied about living at Russo's apartment on a form she gave to DHS. Surganova counters that she provided this address only because she was having difficulty receiving mail at her apartment, but once again, the IJ was not required to accept that explanation. He was entitled instead to hold against her the fact that she did not give the agency her established address with her daughter.

We realize that in today's world husbands and wives may live in separate locations, but in this case...