Cristina Simms v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 27, 2009
• Docket: 08-13146
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-13146 ELEVENTH CIRCUIT Non-Argument Calendar JANUARY 27, 2009 ________________________ THOMAS K. KAHN CLERK Agency No. A99-189-073

CRISTINA SIMMS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (January 27, 2009)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Cristina Simms, a citizen of Colombia, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“IJ”)

order denying her voluntary departure and a continuance of the removal

proceedings. On appeal, Simms argues that: (1) the BIA erred by not giving her the option of a post-hearing voluntary departure; and (2) the BIA abused its

discretion by not granting her a continuance based on the pending appeal of the

denial of her I-130 petition for adjustment of status. After careful review, we

dismiss the petition in part, and deny it in part.

“We review subject matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S.

Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We review the denial of a

motion for a continuance for abuse of discretion. Bull v. INS, 790 F.2d 869, 871

(11th Cir. 1986). We review only the BIA’s decision, except to the extent that the

BIA adopts the IJ’s reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001). Since, in the instant case, the BIA wrote its own opinion and did not

adopt any part of the IJ’s opinion, we will only review the BIA’s opinion.

As an initial matter, we conclude that we lack jurisdiction over Simms’

arguments concerning the voluntary departure. An IJ can grant a voluntary

departure pursuant to the provisions of 8 U.S.C. § 1229c. However, Section

1229c(f) bars judicial review of the denial of a post-hearing voluntary departure,

see 8 U.S.C. §§ 1229c(f), and Section 1252(a)(2)(B)(i) strips us of jurisdiction over

any judgment concerning voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(i).

Nonetheless, Section 1252 does not prevent us from considering constitutional

challenges. See 8 U.S.C. § 1252(a)(2)(D).

2 Because Simms does not raise any constitutional challenges in her petition,

and the statute deprives us of jurisdiction over judgments concerning voluntary

departure, we lack jurisdiction to consider this issue. Accordingly, we dismiss this

portion of Simms’s petition.

Next, we are unpersuaded that the BIA abused its discretion by not granting

Simms a continuance. An IJ “may grant a motion for continuance for good cause

shown.” 8 C.F.R. § 1003.29. In Bull, we held that the IJ abuses its discretion if it

denies a continuance to an alien while there is a pending final adjudication

regarding that alien’s status adjustment application and that alien “can demonstrate

a substantial claim to relief from deportation.” 790 F.2d at 871-73. However, we

also held that the IJ does not abuse its discretion if it denies a continuance upon

determining “that the visa petition is frivolous or that the adjustment application

would be denied on statutory grounds or in the exercise of discretion

notwithstanding the approval of the petition.” Id. at 872. In addition, we quoted

with approval language from an Immigration and Naturalization Service’s (“INS”)

manual that permitted deportation when “there are substantial adverse factors

which . . . would probably lead to the denial of adjustment of status.” Id. at 871.

An alien who is married to a United States citizen can petition for a

reclassification of her immigration status. 8 U.S.C. § 1154(a)(1)(A)(ii). That

alien’s citizen spouse also can petition for a change in the alien’s status. Id. § 3 1154(a)(1)(A)(i). But a marriage that has been entered into for the sole purpose of

evading the immigration laws will not result in a change of the alien’s immigration

status. 8 U.S.C. § 1154(c). The alien has the burden of showing that her “marriage

was bona fide at its inception.” Matter of Riero, 24 I. & N. Dec. 267, 269 (BIA

2007).

As applied here, the CIS’s opinion denying Simms’s I-130 petition serves as

overwhelming evidence that Simms’s marriage was not bona fide at its inception.

This opinion cited numerous major discrepancies in the interview answers of

Simms and her husband, including: (1) a discrepancy regarding who bought their

engagement rings; (2) a discrepancy about how many years they have known each

other; and (3) an inability to identify what religion each religious spouse practices.

The opinion also noted that the interviewing officer did not observe any type of

“married couple rapport” between Simms and her spouse. These major

discrepancies and lack of rapport strongly suggest that Simms’s marriage to her

U.S. citizen spouse was entered into, at its inception, for the sole purpose of

evading the immigration laws, thus, making Simms ineligible for immigration

relief. See 8 U.S.C. § 1154(c). Therefore, it is extremely unlikely that Simms will

prevail in her I-130 appeal, and because this is a substantial adverse factor that will

lead to a denial of Simms’s I-130 petition, the BIA did not abuse its discretion in

denying Simms a continuance on that ground. See id.; Bull, 790 F.2d at 871. 4 In addition, the same adverse factor is present in Simms’s subsequent I-130

petition because that petition is based on the same marriage. While Simms argues

that she has provided, in her second I-130 petition, additional documentary

evidence of being married to her husband, this evidence was only created after the

denial of the first I-130 petition, and, therefore, it cannot overcome the strong

inference that the marriage was fraudulent at its inception that resulted from

Simms’s interview with the CIS officer. Accordingly, the remaining part of

Simms’s petition is denied.

PETITION DISMISSED IN PART, DENIED IN PART.