Francesco Gazzan-Priaroggia v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 15-73138
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCESCO GAZZAN-PRIAROGGIA, No. 15-73138 AKA Francesco Gazzana-Priaroggia, Agency No. A200-419-588 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Francesco Gazzan-Priaroggia, a native and citizen of Italy, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his application under 8

U.S.C. § 1186a(c)(4)(B) for waiver of the joint filing requirement to remove the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). conditional basis of his lawful permanent resident status. We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004), and we review

de novo questions of law, Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

Because the BIA wrote its own decision and did not adopt the IJ’s decision, we

review only the BIA’s decision. Aden v. Holder, 589 F.3d 1040, 1043 (9th Cir.

2009). We grant the petition for review and remand.

The BIA’s determination that Gazzan-Priaroggia failed to show that he

intended to establish a life together with his ex-wife at the time they were married

is not supported by substantial evidence. See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R.

§ 216.5(e)(2); Damon, 360 F.3d at 1088 (evidence relevant to intent includes proof

of shared insurance policies, income tax forms or bank accounts, and testimony or

other evidence regarding the couple’s courtship, wedding ceremony, and whether

they shared a residence). Gazzan-Priaroggia provided credible testimony and a

detailed declaration regarding the circumstances of their courtship, which began in

June 2008 and culminated in their marriage in November 2009, three months after

they began sharing a residence. See Damon, 360 F.3d at 1086 n.2 (where neither

the BIA nor the IJ make an adverse credibility finding, the court of appeals

assumes the petitioner’s factual contentions are true). Gazzan-Priaroggia also

submitted documentary evidence that corroborated his credible testimony,

2 15-73138 including joint bank account statements, a joint income tax return, evidence of

joint health insurance and auto insurance policies, a state driver license listing his

ex-wife’s address, three affidavits from acquaintances, and numerous photographs

of himself, his ex-wife, and her daughter at various social functions and on

vacation together before and after their wedding. See id. at 1088.

Further, although the BIA relied on Gazzan-Priaroggia’s telephonic witness’

testimony that his ex-wife did not wish her family to know of the relationship, the

BIA did not acknowledge the credible explanations of Gazzan-Priaroggia or his

telephonic witness regarding the circumstances surrounding the couple’s decision

not to inform their parents about the marriage, including his ex-wife’s parents’

disapproval of his relationship with their daughter, his ex-wife’s recent separation

from her first husband and the father of her daughter, and their families’

conservative and religious values. Cf. Damon, 360 F.3d at 1089 (agency may not

impose its own values or impose opinions about how parties in a marriage should

behave).

Accordingly, we remand to the BIA to determine whether Gazzan-

Priaroggia should be granted a discretionary waiver under 8 U.S.C.

§ 1186a(c)(4)(B).

PETITION FOR REVIEW GRANTED; REMANDED.

3 15-73138