Valdez v. Lynch

• Decision Date: 10 February 2016
• Docket Number: No. 15–1266.,15–1266.
• Citation: 813 F.3d 407
• Parties: Arsenio VALDEZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

813 F.3d 407

Arsenio VALDEZ, Petitioner,

v.Loretta E. LYNCH,^* Attorney General, Respondent.

No. 15–1266.

United States Court of Appeals, First Circuit.

Feb. 10, 2016.

John H. Ruginski, Jr. on brief for petitioner.

Channah F. Norman, Trial Attorney, Office of Immigration Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, SELYA, and THOMPSON, Circuit Judges.

THOMPSON

, Circuit Judge.

Petitioner Arsenio Valdez seeks review of an order of the Board of Immigration Appeals ("BIA") denying his request for a so-called "marriage waiver" from removal. For the reasons explained below, the petition will be denied.

BACKGROUND

Valdez, a citizen and native of the Dominican Republic, obtained conditional permanent resident status in 1996 after marrying an American citizen the year before. Their marriage fell on hard times, and the couple separated in the early 2000s, with their divorce becoming final in 2008.

Served with a Notice to Appear in October of 2011, Valdez conceded removability at a hearing before an immigration judge ("IJ"). At the same time, Valdez sought relief from removal in the form of an adjustment of status from conditional permanent resident to permanent resident. He also asked for a waiver of the usual requirement to present his status-change request jointly with his spouse. He said that he was forced to make this request on his own, and thus needed a waiver from the joint petition requirement, because he had "entered into the marriage in good faith but the marriage was terminated through divorce or annulment."

After considering Valdez's evidence, the IJ concluded that Valdez failed to establish he had entered into his marriage in good faith. Accordingly, she ordered him removed to the Dominican Republic. Valdez appealed to the BIA, which in a written decision discussed what it saw as a lack of evidence that Valdez married in good faith, and upheld the IJ's decision in its entirety after concluding that Valdez "failed his burden of proof to establish that the marriage was bona fide."

Aggrieved, Valdez filed a timely petition for review with this court.

STANDARD OF REVIEW

In denying Valdez's appeal, the BIA discussed the evidence adduced before the IJ and the legal arguments Valdez made as to why the IJ got it wrong. In affirming the IJ, the BIA indicated that it had relied on its own reasoning, plus the reasons "articulated by the [IJ] in her decision...." Because the BIA did not simply adopt the IJ's decision, but relied instead on a combination of its own reasoning and the IJ's, we review the IJ's and the BIA's decisions together. Dimova v. Holder, 783 F.3d 30, 35 (1st 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 whether a marriage was entered into in good faith is a factual one." Id. at 138 (citing Jing Lin v. Holder, 759 F.3d 110, 112 (1st Cir.2014) ). We must uphold the factfinder's judgment as to the presence or absence of good faith "so long as it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Id. (quoting Reynoso v. Holder, 711 F.3d 199, 205 (1st Cir.2013) ). What this all means is that we will only reverse the IJ's or the BIA's finding on whether a marriage was entered into in good faith if "the record evidence would ‘compel a reasonable factfinder to reach a contrary determination.’ " Jing Lin, 759 F.3d at 112 (quoting Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir.2013) ).

DISCUSSION

A.

First, the lay of the land. A noncitizen who marries a United States citizen may obtain conditional permanent resident status. See 8 U.S.C. § 1186a(a)(1)

. To remove that condition, the two spouses must file a joint petition with the Department of Homeland Security asking for it to be removed, and they must do so within the ninety-day window before the second anniversary of the noncitizen spouse's attainment of conditional permanent resident status. See id. § 1186a(c)(1)(A) ; 8 C.F.R. § 1216.5(a). Failure to file the petition in the time allotted results in termination of the noncitizen spouse's conditional permanent resident status. 8 U.S.C. § 1186a(c)(2).

A couple that does not file their petition on time can jointly apply for a "hardship waiver" of the timing requirement. See id. § 1186a(c)(4)

. If the noncitizen spouse is unable to file a joint application because the marriage has already ended, he must show—among other things—that he married his ex-spouse "in good faith." Id. § 1186a(c)(4)(B). "Good faith" in this context means that the noncitizen "intended to establish a life with [his] spouse at the time" of marriage. Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir.2005). The noncitizen's burden of proving good faith may be satisfied "by introducing ‘evidence relating to the amount of commitment by both parties to the marital relationship.’ " Lamim, 760 F.3d at 137 (quoting 8 C.F.R. § 1216.5(e)(2) ).

Evidence of good faith includes the following:

(i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined;

(ii) Documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence;

(iii) Birth certificates of children born to the marriage; and

(iv) Other evidence deemed pertinent....

8 C.F.R. § 1216.5(e)(2)

.

Pursuant to this regulation "immigration authorities [are] 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." Lamim, 760 F.3d at 138

. Clearly, the regulation prioritizes written evidence over testimonial assertions, as three out of the four categories consist of "documentation" or "certificates." See 8 C.F.R. § 1216.5(e)(2)(i)-(iv) ; see also Lamim, 760 F.3d at 138 (focusing our analysis on documentary evidence). Indeed, it would seem that oral testimony only falls under the fourth category if "deemed pertinent" by the immigration authorities. 8 C.F.R. § 1216.5(e)(2)(iv)

.

B.

Valdez's flagship argument is that the IJ and BIA should be reversed because they ignored probative and uncontroverted evidence in the record demonstrating that he married in good faith.¹ The government, by contrast, says that Valdez's evidence was not strong enough to compel us to reverse the IJ and BIA.

Here, the IJ and the BIA held only that Valdez failed to carry his burden of proving that he married in good faith. Our review of the record confirms that the IJ's and the BIA's decisions are supported by reasonable, substantial, and probative evidence. Nothing comes close to compelling us to reach the opposite result.

Valdez testified in front of the IJ that he (then age 37) and Evelyn Mercedes Veracruz (age 50) got married in Puerto Rico in 1995, and that their marriage ended in divorce in 2008. They married because Valdez "fell in love with her" after they met. He did not testify about when or under what circumstances they met, what their life was like before or after their wedding, or provide any details about the wedding ceremony.

After the wedding, Valdez and his wife, who had lived together before marriage, continued cohabitating in Puerto Rico for at least part of 1995 (the exact timeframe is by no means clear). In 1996, Valdez moved to Rhode Island (for reasons not disclosed in this record), where he began working, while his wife stayed behind on the island. It was not until 1998 that Valdez went to Puerto Rico and brought his wife back to Pawtucket, where they lived together for "about three months." Valdez explained that his wife never wanted to be in Rhode Island due to the cold weather and her arthritis

, so she returned to Puerto Rico. Valdez would "send her a lot of money" there, but his cousins in Puerto Rico told him that she would "drink that money."²

Valdez testified his marriage was "valid" and that it did not produce any children because his wife "couldn't give birth." He said that the two did not have joint ownership of any real estate, but that both his and his wife's names were on one of his apartment leases. In addition, Valdez said they owned a car together (although his wife's name was not on the title because she didn't have a driver's license), and that they had a joint bank account at Fleet National Bank.

Sometime around the year 2000, Valdez "started noticing" that his wife was having an affair. Valdez pointed to the affair—along with his wife's unwillingness to stay in Rhode Island—as causing their separation. They parted company around December 2001, and Valdez "lost contact" with her in 2002 or 2003.

Valdez also submitted various documents in support of his claim. Included among them were numerous federal and state tax returns as evidence of the couple's commingling of financial assets and liabilities. See 8 C.F.R. § 1216.5(e)(2)(i)

. Valdez did not produce any leases or other documents to back up his assertion that he and his wife lived together following their marriage. See id. § 1216.5(e)(2)(ii). Furthermore, and unsurprisingly in light of his testimony that his wife was unable to bear children, Valdez did not submit birth certificates from any children born to the marriage. See id. § 1216.5(e)(2)(iii)

.

Valdez's other documents must be considered as "other" pertinent evidence because they did not bear on commingling of assets or the amount of time the couple lived together. See id. § 1216.5(e)(2)(iv)

. In that vein, Valdez introduced a signed statement "affirm[ing] and attest[ing] and testif[ying] before God and men" that his marriage "was a true marriage," along with two affidavits...