Toribio-chavez v. Holder
| Decision Date | 08 July 2010 |
| Docket Number | No. 09-1760.,09-1760. |
| Citation | 611 F.3d 57 |
| Parties | Crispin TORIBIO-CHAVEZ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
COPYRIGHT MATERIAL OMITTED
Melanie M. Chaput on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, Aviva L. Poczter, Senior Litigation Counsel, and Nehal H. Kamani, Trial Attorney, Office of Immigration Litigation, on brief for respondent.
Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.
The petitioner, Crispin Toribio-Chavez (“Toribio”), is a native and citizen of Mexico. Toribio petitions for review of a decision of the Board of Immigration Appeals (“BIA”), which affirmed an immigration judge's (“IJ”) order of removal and denial of Toribio's request for cancellation of removal. 1 After careful consideration, we deny the petition for review.
While living in Mexico, Toribio married Rosina Chavez (“Chavez”) in 1978 and fathered three children by her. In 1983, Toribio left his family and entered the United States without inspection.
Toribio settled in New Hampshire and began dating Cheryl Kucharski (“Kucharski”). The couple later had two daughters. Returning to Mexico in 1993 for two weeks, Toribio executed a power of attorney in favor of a Mexican attorney for the purpose of obtaining an annulment of his marriage to Chavez. Toribio then re-crossed the border without inspection and returned to New Hampshire, where he has resided since. Toribio never received any confirmation or documentation indicating his marriage to Chavez was annulled. He contends, however, that three or four months after his reentry, his sister in Mexico informed him that the annulment was all set.
In June 1999, Toribio married Jamie Potter (“Potter”). At the time of the wedding, the couple already had a son, and later that year, they had a daughter. In applying for his New Hampshire marriage license, Toribio did not disclose his previous marriage to Chavez. During this same time period, Toribio reunited with his three oldest children, who were now teenagers and living legally in Illinois with Chavez. In 2000, Toribio received a divorce decree from the State of Illinois pertaining to his marriage to Chavez. The divorce was finalized when Toribio simply signed and returned a form.
Based upon his marriage to Potter, an American citizen, Toribio moved to adjust his status to lawful permanent resident. In connection with this process, Toribio completed a variety of forms, and in 2002 he and Potter were interviewed under oath by Immigration Adjudications Officer Maurice Violo (“Violo”). Both Toribio and Potter were represented by an attorney. During the interview Toribio did not disclose his previous marriage to Chavez or the children they had together. Moreover, though requested, none of this information was included on the forms Toribio and Potter completed. On February 1, 2002, Toribio's application for adjustment of status was approved and his status was adjusted to lawful permanent resident.
On August 20, 2002, the Immigration and Naturalization Service (“INS”) instituted removal proceedings against Toribio, charging that pursuant to the Immigration and Nationality Act (“INA”) he was inadmissable at the time his status was adjusted. See 8 U.S.C. § 1227(a)(1)(a). This inadmissibility was based on Toribio allegedly procuring his admission by willfully misrepresenting a material fact, specifically by claiming that his marriage to Potter was his first and failing to identify his children with Chavez. See 8 U.S.C. § 1182(a)(6)(C)(i).
Toribio's removal proceedings began on February 10, 2003, and over the next three-and-a-half years ten hearings ensued.2 Different attorneys represented the Department of Homeland Security (“DHS”) at these hearings, and Toribio also had counsel.3 Toribio first testified on May 19, 2004. When questioned by DHS counsel as to why he did not identify his marriage to Chavez when he applied for a marriage license with Potter, Toribio claimed he thought his marriage to Chavez had been annulled. Toribio conceded he had no evidence of this fact and never attempted to verify the annulment.4 DHS counsel also questioned Toribio regarding an INS form, designated G-325, which Toribio signed as part of his application for adjustment of status. On the form, he noted “N/A” in the section for designating former wives. According to Toribio, he did not list Chavez because he misunderstood the question and thought it was asking if he had any former wives in the United States. He further noted that he barely spoke English.
Additionally, over Toribio's counsel's objection, the IJ admitted into evidence a letter written by Potter, in which she claimed she only became aware of Toribio's first marriage after her own marriage to him, when she found his divorce papers. Toribio countered that Potter always knew about his marriage to Chavez, the three children from this union, and the subsequent Illinois divorce.
At a March 22, 2005 hearing, the then-presiding IJ found that Toribio's marriage to Potter was bigamous and that DHS had proved removability by clear and convincing evidence. The IJ then indicated that she would consider Toribio's application for cancellation of removal or in the alternative, voluntary departure.
On August 3, 2005, at the first cancellation of removal hearing, DHS counsel questioned Toribio about his immigration interview with Violo and the various forms he had completed in connection with the application process. DHS counsel also queried Toribio about why he kept immigration officials in the dark about his prior marriage and Illinois divorce, which had been finalized by the 2002 interview. Toribio could give no reason for not disclosing this information.
DHS counsel then questioned Toribio about another INS form, designated I-485, which Violo completed during Toribio's interview. On the form, Violo listed the names and dates of birth of Toribio's children from his relationships with Kucharski and Potter; however, his children with Chavez were not mentioned. The form also contained the notation “no other children.” Asked to explain why he did not identify his children with Chavez, Toribio merely responded that he could not recall or understand why he had not done so. Toribio asserted that he barely spoke English when he came to the United States, though it is undisputed the interview occurred nearly twenty years after his arrival. DHS counsel further questioned Toribio about his marriage license with Potter, which under Toribio's name indicated “never married.” Toribio conceded he swore to tell the truth when he applied for the license, but claimed that based on his mis-assumption that his first marriage was annulled, he believed it was as if it never existed.
At a September 26, 2006 hearing, one of Toribio's daughters with Kucharski, and his then-current girlfriend, testified about his character and the hardship that would result from his deportation. Immigration officer Violo also testified. Noting that he conducts many interviews every week, Violo could not specifically recall Toribio's interview; however, he testified as to his custom and practice. Stressing that it is his standard practice in adjustment interviews to ask about previous marriages, Violo was certain he had delved into this area with Toribio. Specifically, Violo said he would have asked Toribio and Potter individually whether either had a previous marriage and he would have required a separate verbal response from each. If either Toribio or Potter had admitted to a previous marriage, he would have demanded proof of divorce or annulment. Violo also typically asked whether a prior marriage produced children. Additionally, if an applicant was represented by counsel, Violo said he would dissuade the attorney from responding to questions on the applicant's behalf, but would note any difference between an attorney's and applicant's answers on the immigration forms.
At the final hearing on December 27, 2006, Toribio again testified, but his assertions varied significantly from his previous testimony. In particular, he testified and proffered an affidavit to the following effect. Focusing on his 2002 immigration interview, Toribio now alleged that Potter was a very controlling woman who told him prior to the interview that he “should keep [his] mouth shut” and she “would handle the appointment.” Toribio also claimed that Potter answered all of the interview questions concerning previous spouses and children, and he had not interrupted her out of fear. Further, Toribio believed the questioning pertaining to his children referred to children born in the United States. He also claimed his attorney may have answered some of the questions. Turning to his marriage license Toribio testified he did not understand English very well and thought he only had to identify previous marriages in the United States. Finally, he asserted that Potter answered all the questions on the marriage license application. At the close of the hearing, the IJ reaffirmed Toribio's removal and denied his request for cancellation of removal and voluntary departure.
Toribio timely appealed to the BIA, which dismissed his appeal and affirmed the IJ's decision. The BIA found no clear error in the IJ's factual findings, including that Toribio had knowingly misrepresented his marital status and given false testimony. The BIA also found no error in the IJ's denial of cancellation of removal based on this false testimony. It further held that the IJ did not commit error in admitting Potter's letter and assigning it limited weight, and if there was error, it was harmless. Toribio's petition to this court followed.
“We review the BIA's legal conclusions...
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