Dones v. Ashcroft

89 F. App'x 762
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 14, 2004
DocketNo. 03-1004
StatusPublished

This text of 89 F. App'x 762 (Dones v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dones v. Ashcroft, 89 F. App'x 762 (3d Cir. 2004).

Opinion

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Dolly Herlinda Dones, a citizen of Ecuador, appeals from the BIA’s order of departure predicated on the denial by the Immigration Judge (“IJ”) of petitioner’s request for a section 216(c)(4) waiver, 8 U.S.C. § 1186a(e)(4). We have jurisdiction to hear this appeal pursuant to 8 U.S.C. § 1105a (1994) (codified as amended at 8 U.S.C. § 1252). Because we find that the IJ did not abuse her discretion in denying the petition for waiver, we will affirm the order of the BIA.

I.

Dones entered the United States in 1989 as a nonimmigrant visitor, and on April 15, 1991, married Auriel Dones Jr., who is a United States citizen. As a result of her marriage, petitioner’s status was adjusted to lawful permanent resident on a conditional basis pursuant to 8 U.S.C. § 1186a. Under the applicable statute, when an alien obtains permanent resident status based on marriage within 24 months of that marriage, the alien spouse is conditionally admitted for a two-year probationary period. 8 U.S.C. §§ 1186a (a)-(d) (1994). Within 90 days of the expiration of the probationary period, the couple must [763]*763jointly file a petition with the INS requesting removal of the conditional status, stating that the marriage is bona fide and has not been annulled or terminated, and must appear for an interview before an INS officer. 8 U.S.C. §§ 1186a(c)-(d) (1994). In the event that such joint filing is no longer possible, it can be waived “in the Attorney General’s discretion ... if the alien demonstrates that ... (B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse)....” 8 U.S.C. § 1186a(c)(4)(B).

In September 1993, Dones filed a Petition to Remove the Conditions on Residence and requested a waiver of the joint filing requirement, pursuant to 8 U.S.C. 1186a(c)(4)(A) and (B) (1994). She was interviewed by the District Director on December 13, 1993, and her permanent resident status was terminated on April 18, 1994, because she failed to satisfy the Attorney General that her marriage was bona fide.

The INS instituted deportation proceedings in June 1994 under 8 U.S.C. § 1251(a)(1)(D) (1994) (recodified at 8 U.S.C. § 1227(a)(1)(D) (2002)), providing for the removal of immigrants whose conditional status has been terminated. The proceedings were remanded to the District Director because Petitioner had obtained a divorce on September 26, 1994. On November 17, 1995, the District Director again denied Petitioner’s application to remove the conditional basis of her permanent resident status because she failed to satisfy the good faith requirement for marriage. At a hearing on April 17, 1998, the IJ found that Dones had failed to establish her eligibility for a waiver of the requirement to file a joint petition for the removal of her conditional status, and Dones was granted voluntary departure until October 19,1998.

While no appeals may be sought from the discretionary denial of a waiver by the INS, an alien may seek review of denial of the waiver within the context of deportation proceedings. Because the denial of such waiver is discretionary, we must limit our review to an abuse of discretion, and because there was no opinion from the BIA, we review the decision of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002) (citing Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001)).

Dones argues that the IJ erred in finding that she had not entered into the marriage in good faith, and further argues that the IJ erred in making an adverse credibility finding regarding Dones’ testimony. For reasons that follow, we will affirm.

II.

The applicable statutes, which have been amended in the long interim between the initial removal proceedings and this appeal, arose out of the Immigration Marriage Fraud Amendments enacted in 1986 to stem fraud perpetrated in connection with spousal visa petitions.

A. Adverse Credibility

The statute for judicial review of deportation orders applicable at the relevant time states, “An order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations.” 8 U.S.C. § 1105a(c) (1994).1 We have noted that “[t]his provision precludes review [764]*764when there is no appeal to the Board.... It also bars consideration of particular questions not raised in an appeal to the Board.” Alleyne v. United States Immigration and Naturalization Serv., 879 F.2d 1177, 1182 (3d Cir.1989) (citations omitted). Because Petitioner failed to challenge the IJ’s adverse credibility ruling before the BIA, Dones cannot do so here.

We note in passing that there is nothing in the IJ’s opinion suggesting that she made an adverse credibility finding. Instead, the IJ explicitly states that she is denying the petition for waiver because the weight of the evidence did not fall on Dones’ side. See A.R. at 50, 54 and 55. Inasmuch as Dones failed to exhaust the adverse credibility issue and because the IJ never made an adverse credibility determination, we will not review that issue.

B. Whether the evidence established that Dones entered the marriage in good faith

In determining whether an alien spouse entered into a marriage in good faith, “the INS considers the degree of commitment to the marriage by both parties, including any documentation concerning their combined financial assets and liabilities, the length of time during which they cohabited after the marriage and after the alien obtained conditional permanent resident status, and any other relevant evidence.” Nyonzele v. Immigration and Naturalization Serv., 83 F.3d 975, 980 (8th Cir.1996) (citing 8 C.F.R.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
89 F. App'x 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dones-v-ashcroft-ca3-2004.