Urena-Tavares v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 7, 2004
• Docket: 03-1013
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

5-7-2004

Urena-Tavares v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-1013

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Recommended Citation "Urena-Tavares v. Atty Gen USA" (2004). 2004 Decisions. Paper 668. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/668

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Peter D. Keisler Assistant Attorney General Civil Division UNITED STATES COURT OF Jeffrey S. Bucholtz (Argued) APPEALS FOR THE THIRD CIRCUIT Deputy Assistant Attorney General Civil Division David V. Bernal No. 03-1013 Assistant Director Office of Immigration Litigation Russell J.E. Verby DANIEL URENA-TAVAREZ, Trial Attorney Office of Immigration Litigation Petitioner U.S. Department of Justice Washington, D.C. 20044 v. Attorneys for Respondent JOHN ASHCROFT, Attorney General of the United States, OPINION OF THE COURT Respondent

SLOVITER, Circuit Judge. Petition for Review of an Order In this Petition for Review from a of the Board of Immigration Appeals final order of removal entered by the (A44-445-342) Board of Immigration Appeals (BIA) the Pe titione r, D a n i e l U r e n a -Tavare z (Tavarez),1 argues that the decision of the Argued January 15, 2004

Before: SLOVITER, RENDELL, and 1 Tavarez’s name is spelled ALDISERT, Circuit Judges differently throughout the record and the briefs. He is referred to as “Tavares” in (Filed May 7, 2004) the caption on all documents in the Administrative Record, A.R. at 2; as “Tavarez” on the title page of the Steven Vosbikian (Argued) Petitioner’s Brief but as “Tavares” Vosbikian and Grady throughout, Pet’r Br. at 2; and as Cherry Hill, NJ 08034 “Tavarez” in the Government’s Brief, Gov’t Br. at 2. Because he signed and Attorney for Petitioner printed his name as “Tavarez,” A.R. at 341, we will refer to him herein as Immigration Judge (IJ) was not based on dating her for about six or seven months. adequate findings of fact and that the BIA Marriage of an alien to a United States did not properly evaluate the IJ’s findings citizen entitles an alien to obtain against himself and his two minor conditional permanent resident status, children. In considering the arguments, Immigration and Nationality Act (INA) § we find ourselves faced with a more 216(a)(1), 8 U.S.C. § 1186a(a)(1), and fundamental and more generally applicable Tavarez obtained such status on January 8, question – one going to the statutory 1994 pursuant to an application filed by limitation on our review of matters Pineiro.3 committed to the Attorney General’s Under the INA, the conditions on discretion. such status can be removed if “the alien I. spouse and the petitioning spouse (if not deceased) jointly . . . submit to the FACTS AND PROCEDURAL Attorney General . . . a petition which BACKGROUND requests the removal of such conditional Petitioner is a 61-year old native basis . . . .” INA § 216(c)(1)(A), 8 U.S.C. and citizen of the Dominican Republic, § 1186a(c)(1)(A). 4 Pursuant thereto, and his two children, Danny Zefar Tavarez and Pineiro filed a joint Tavarez, age 15, and Daniela Zefar application on December 1, 1995 to have Tavarez, age 14, are also natives and the conditions on Tavarez’s permanent citizens of the Dominican Republic. It is residence status removed, and an unclear from the record when and in what immigration officer from the then- fashion Tavarez entered the United States, Immigration and Naturalization Service but on September 3, 1992, he married (INS) scheduled the interview for Eladia Pineiro,2 a citizen of the United States, in Camden, New Jersey, after

“Tavarez.” 3 The Government concedes that 2 The Petitioner’s Reply Brief refers the initial application, which is not part to her as “Eladia Lopez,” Pet. Reply Br. of the Administrative Record, was filed at 6; the Government’s Brief refers to her by Pineiro. Gov’t Br. at 6. as “Elidia Pineiro,” Gov’t Br. at 6; and 4 the Administrative Record refers to her INA statutes will be cited both to both as Eladia Pineiro” and “Elidia their codifications in the INA and in Title Pineiro,” A.R. at 336. Because her 8 of the United States Code the first time signature appears to be “Eladia Pineiro,” they are referenced in this opinion. A.R. at 337, we will refer to her as Subsequent citations will be to Title 8 of “Eladia Pineiro” or as “Pineiro.” the United States Code.

2 November 19, 1998.5 Shortly before the anything.” A.R. at 134 (testimony of interview with the immigration officer, witness Carmen Sanchez). In the car ride Tavarez and Pineiro quarreled over which home, when Pineiro realized that Tavarez of them was responsible for payment of would be deported, “she started crying and Pineiro’s share of the income taxes. then hugged him and said, you know, Tavarez left the room to use the men’s sorry, I didn’t mean to do that. That’s not room. Pineiro was called into the what I wanted to do, I just wanted to be interview alone and told the immigration out of the problem so I didn’t have to, you officer that although she did not want to know, pay the taxes . . . .” A.R. at 135-136 harm Tavarez, “she didn’t live with (testimony of witness Carmen Sanchez). [Tavarez] and she was a friend.” A.R. at The INS District Director denied 134 (testimony of witness Carmen Tavarez’s application to remove the Sanchez). The immigration officer condition on his permanent resident status; reassured her by stating that she was not thus his conditional status was deemed to harming him. Pineiro then signed a sworn have expired on January 8, 1996. statement before the immigration officer, Thereafter, the INS began apparently prepared by the officer, stating proceedings to remove Tavarez and his that she and Tavarez never lived together children by filing a Notice to Appear, as a married couple and that they did not charging that his status as a conditional consummate the marriage. She also stated, permanent resident was terminated “I felt pity on him so I married him. I only pursuant to 8 U.S.C. § 1186a, and that he married her [sic] so she [sic] could obtain obtained his immigrant status by fraud or her [sic] legal permanent residence.” A.R. willful misrepresentation of a material at 337. fact. The removal proceedings were When Tavarez came into the assigned to an IJ. interview room, the immigration officer It was incontestable that Pineiro had informed him that he was no longer w i th d ra w n h e r s u p po r t , t h e r e by eligible for permanent resident adjustment eliminating any possibility of change of status because his wife withdrew the Tavarez’s status on the basis of a joint petition. Tavarez “looked at [his wife] and applic ation. Tav arez th en file d said, what you trying to do? You crazy. applications for a waiver of the obligation Why you doing this? And all [Pineiro] did to file a joint application. Under the INA, was put her head down and didn’t answer the Attorney General may waive the obligation of a joint filing requirement for 5 an alien and his spouse if (1) the removal The testimony given before the would result in extreme hardship, (2) the immigration officer is not in the marriage terminated but was entered into Administrative Record, but was reported in good faith, or (3) the marriage was to the IJ by witnesses at the two hearings entered into in good faith but that the held by him.

3 citizen spouse either battered or subjected Tavarez’s house, but stated that they were the alien spouse to extreme cruelty. INA all from the same neighborhood and that §§ 216(c)(4)(A)-(C), 8 U.S .C. §§ she “[saw] them all the time together.” 1186a(c)(4)(A)-(C). Tavarez based his A.R. at 148. The IJ characterized Carmen application on all three statutory Sanchez as a “rather compelling” and exceptions. “honest witness” in whose testimony he placed “a great deal of credence.” A.R. at Sometime thereafter, Pineiro 40. The other witness for Tavarez was divorced Tavarez. The IJ summarily Danny Tavarez, Tavarez’s son, who denied the waivers based on extreme moved in with the couple in August 1997 hardship and battered spouse, stating that after leaving the Dominican Republic, and there was no or almost no evidence for who testified that Pineiro prepared his either. The IJ then considered the meals, picked out his school clothes, and evidence from the hearing before him and taught him how to do chores. A.R. at 262. devoted a significant amount of his The IJ found this testimony to “be worthy decision to discussing the issue of whether of some degree of belief.” A.R. at 40. the marriage was entered into in good faith. A waiver under INA § 216(c)(4)(B), In addition, Tavarez testified as did 8 U.S.C. § 1186a(c)(4)(B), permits his daughter. The final witness, Miguel removal of the conditions on an alien’s Espinal, a friend who attended the permanent resident status without wedding, testified he would see the couple requiring his spouse to petition jointly for together, took them to the bank and such removal if “the qualifying marriage shopping, and cooked with them at their was entered into in good faith by the alien home. The IJ also considered Pineiro’s spouse, but the qualifying marriage has sworn statement in reaching his decision been terminated (other than through the that the marriage was not undertaken in death of the spouse . . . ).” Id. good faith. Because the IJ concluded that “this is a case of a friendship, of a The witnesses before the IJ relationship of some sort but not a included Carmen Sanchez, who assisted marriage,” he denied the application for a Tavarez and Pineiro in the preparation of waiver of the joint filing requirement. immigration documents, tax filings, and in A.R. at 43. The IJ ruled that Tavarez is translation at the immigration interview. removable under section 237(a)(1)(D)(i) of At the December 7, 1999 hearing before the INA, 8 U.S.C. § 1227(a)(1)(D)(i), the IJ, Sanchez testified that in Tavarez’s because his status as a conditional bathroom absence while waiting for the permanent resident was terminated. immigration officer’s hearing, Pineiro told Tavarez appealed to the BIA, which her that unless Tavarez paid her share of affirmed the decision of the IJ, concluding, the taxes, she would “drop” his “Although [Tavarez] submitted evidence immigration case. A.R. at 132. Sanchez and testimony that his marriage was in admitted that she never went to the

4 ‘good faith,’ in light of his former wife’s This standard reinforces “the presumption statement, we defer to the Immigration favoring judicial review of administrative Judge’ [sic] finding in this case.” A.R. at action.” Block v. Cmty. Nutrition Inst., 3. Tavarez then filed the pending Petition 467 U.S. 340, 349 (1984). Where for Review. congressional intent to preclude judicial review is “fairly discernible” in the detail II. of the particular legislative scheme, this DISCUSSION presumption favoring judicial review does not apply. Id. at 351; see also Ismailov v. A. 8 U.S.C. § 1252(a)(2)(B)(ii) Reno, 263 F.3d 851, 854-55 (8th Cir. Shortly before oral argument before 2001). this court, the Government sent the court a The jurisdictional statute in letter, pursuant to Federal Rule of question states: Appellate Procedure 28(j), stating that “[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii), Notwithstanding any other this Court lacks jurisdiction to review [the provision of law, no court denial of the waiver], because [8 U.S.C.] § shall have jurisdiction to 1186a(c)(4) confers to the Attorney review . . . any other General’s ‘sole discretion ’ the decision or action of the determination whether petitioner presented A t t o r n e y G e ne ral th e evidence of sufficient credibility and authority for which is weight to satisfy that provision.” 28(j) s p e c i f ie d u n d e r t h is Letter from the Government, to Office of subchapter to be in the the Clerk, at 2 (Jan. 13, 2004). We must discretion of the Attorney first consider this issue of jurisdiction, as General, other than the it “is axiomatic that this court has a special granting of relief under obligation to satisfy itself of its own section 1158(a)[, which jurisdiction. . . .” United States v. Touby, governs asylum,] of this 909 F.2d 759, 763 (3d Cir. 1990) (internal title.6 quotation and citation omitted). We review jurisdictional questions de novo. See Luu-Le v. INS, 224 F.3d 911, 914 (9th 6 We address in this opinion the Cir. 2000). question of whether we can review The Supreme Court has held that decisions under 8 U.S.C. § 1186a(c)(4) only a showing of “clear and convincing “regarding discretionary relief by the evidence” is sufficient to support a finding Attorney General and his designees, that Congress intended to preclude judicial which includes, inter alia, IJ, the BIA, review of an administrative action. Bd. of INS District Directors, and INS Regional Governors of the Fed. Reserve Sys. v. Commissioners.” Montero-Martinez v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991). Ashcroft, 277 F.3d 1137, 1140 n.1 (9th

5 8 U.S.C. § 1252(a)(2)(B). removal orders against criminal aliens); § 1252(b)(4)(D) (limiting review of asylum The language “this subchapter” in determinations for resident aliens),” Reno the foregoing provision refers to v. Am.-Arab Anti-Discrimination Comm., Subchapter II in Chapter 12 of Title 8 of 525 U.S. 471, 486-87 (1999) (discussing the United States Code, and includes the scope of 8 U.S.C. § 1252(g)). 7 section 1186a, the provision at issue here that governs conditional permanent The scope of section resident status based on marriage to a 1252(a)(2)(B)(ii) has been the subject of United States citizen. some disagreement among the courts of appeals. Section 1252 is captioned Congressional intent to preclude “Judicial review of orders of removal.” judicial review in situations outlined in The courts have had to decide whether the this provision is not merely “fairly provision strips courts of appeals from discernible,” it is express and manifest. reviewing all discretionary decisions or This jurisdiction-stripping provision is part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 7 As the Court noted, there are many (IIRIRA). The Supreme Court has stated jurisdiction-stripping provisions in that “many provisions of IIRIRA are IIRIRA, some of which appear at first aimed at protecting the Executive’s glance to foreclose review in similar discretion from the courts – indeed, that kinds of situations. Among the can fairly be said to be the theme of the provisions not mentioned by the Supreme legislation. See, e.g., 8 U.S.C. § Court: “For example, section 1252(e) 1252(a)(2)(A) (limiting review of any addresses limitations on judicial review claim arising from the inspection of aliens of exclusion orders, including habeas arriving in the United States); § review and collateral constitutional 1252(a)(2)(B) (barring review of denials challenges to the validity of the system; of discretionary relief authorized by section 1252(f) provides limitations on v a r i o u s sta tu to ry provisions); § injunctive relief available in courts other 1252(a)(2)(C) (barring review of final than the Supreme Court; and, section 1252(g) bars review of the Attorney General’s decision to commence Cir. 2002). Because in the instant case proceedings, adjudicate cases, or execute the BIA deferred to the findings of the IJ removal orders.” CDI Info. Servs., Inc. on the relevant “good faith” issue, we v. Reno, 278 F.3d 616, 620 (6th Cir. review the opinion of the IJ, Abdulai v. 2002). In this opinion, we focus our Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. inquiry upon the scope of 8 U.S.C. § 2001), and will use “IJ” or “BIA” as a 1252(a)(2)(B)(ii) and its applicability to shorthand for the Attorney General and 8 U.S.C. § 1186a(c)(4), and express no his designees. position about the other provisions.

6 only those made in the context of removal Tavarez was ineligible for the section proceedings. Three courts of appeals have 1186a(c)(4)(B) waiver resulted in a final held that section 1252(a)(2)(B)(ii) applies order of removal. to all discretionary decisions enumerated B. 8 U.S.C. § 1186a(c)(4) in the relevant subchapter of Title 8, which includes sections 1151-1378, regardless of Section 1186a(c)(4) states: the context in which the decisions were (4) Hardship waiver made. See Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir. 2003) (revocation The Attorney General, in the of parole); CDI Info. Servs., 278 F.3d at Attorney General’s 620 (denial of extension of non-immigrant discretion, may remove the visa); Van Dinh v. Reno, 197 F.3d 427, conditional basis of the 434 (10th Cir. 1999) (transfer of aliens permanent resident status from one facility to another). for an alien who fails to meet the requirements of The Court of Appeals of the Ninth paragraph (1) if the alien Circuit, on the other hand, disagrees. In demonstrates that— . . . . Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003), the court held that § 1252(a)(2)(B)(ii) does not bar (B) the qualifying marriage review of the decision to issue an was entered into in good immigrant investor visa pursuant to § faith by the alien spouse, but 1153(b)(5). Although the Spencer court the qualifying marriage has stated carefully that it “need not decide been terminated (other than whether § 1252(a)(2)(B)(ii) applies outside through the death of the the context of removal proceedings,” id. at spouse) and the alien was 692, it concluded that because section not at fault in failing to meet 1252(a )(2)(B )(ii) refers not to the requirements of “discretionary decisions” but to “acts the paragraph (1), . . . authority for which is specified under the INA to be discretionary,” the provision precludes review on ly o f those . . . . In acting on discretionary decisions for which there are applications under this no guiding legal standards. Id. at 689 paragraph, the Attorney (emphasis in original). We need not reach General shall consider any that issue in this case nor do we reach the credible evidence relevant to issue of whether section 1252(a)(2)(B)(ii) the application . The covers discretionary decisions made determination of w hat outside the context of removal proceedings evidence is credible and the because in this case, the IJ’s finding that weight to be given that

7 evidence shall be within the review. Not only may the Attorney sole discretion of the General make the decision in her or his Attorney General. discretion, but the Attorney General has the “sole discretion” to decide “what 8 U.S.C. § 1186a(c)(4) (emphases added). evidence is credible and the weight to be The first paragraph of section given that evidence.” § 1186a(c)(4). This 1186a(c) explicitly assigns to the Attorney is particularly relevant here because the General the discretion to “remove the thrust of Tavarez’s argument is that “the conditional basis of the permanent resident Board failed to consider [his] objection to status for an alien” who demonstrates one the manner in which the Immigration of the three qualifications for waivers that Judge evaluated the evidence.” Pet. Suppl. follow in the ensuing paragraphs. This Br. at 3-4. The IJ explicitly balanced the statute thus falls within even the more considerations on the record, and because narrow reading put forth by the Spencer that balance in this case is dispositive and court – that determinations in which “the impervious to review, we set forth his right or power to act is entirely within [the statements in full. A ttorney General’s] judgmen t or After discussion of the “best conscience . . . [and] are matters of pure evidence for a waiver,” the testimony of discretion, rather than discretion guided by Sanchez and Danny Tavarez, the IJ stated: legal standards,” are those exempted from j u d i c ia l re vie w b y sectio n On the minus side of the 1252(a)(2)(B)(ii). Spencer Enters., 345 ledger is the fact that there’s F.3d at 690. And unlike the provision the virtually no documentation Ninth Circuit exem pted from the at all in this case to establish jurisdiction-stripping effect of section that this is a legitimate 1252(a)(2)(B)(ii), section 1186a(c) states marriage. There’s one that the Attorney General may grant such savings account with no a waiver, not that the Attorney General activity. There’s no shall grant such a waiver, making clear checking account. There are that the waiver may not be granted even if no joint leases, the property the legal requirements of the three waiver that the respondent bought, qualifications are met. Compare 8 U.S.C. he apparently bought in his § 1186a(c), with 8 U.S.C. § 1153(b)(5). own name, so his wife’s not Section 1252(a)(2)(B)(ii) clearly precludes on that deed. There are no judicial review of decisions under section affidav its from anyone 1186a(c)(4). familiar with the respondent or his wife. There’s no Section 1186a(c)(4) provides the evidence of co-mingling of Attorney General’s discretionary decision assets. There are a few tax with another layer of protection from returns, which do suggest

8 some evidence of life a r e s o m e t i m e s m ix e d together as husband and motives behind marriages. wife, but for the most part, There are different feelings. cons idering that these Apparently, there was a people were married from f e e l in g o f a f f e c t io n , 1992 until only about a year friendship and concern for ago, a period of about eight him but it appears also that years, there’s nothing here she would not have married to speak of and it’s him but for the fact that he remarkable that there is so needed a green card and she little in this file to show that does not allege in here or these two people lived admit or concede that she together. ever received any money for marrying him. Apparently A.R. at 40. The IJ continued: the Service never pressed The Court believe her to make such a [sic] that the respondent’s statement because she then-wife, Eladia, probably doesn’t make one. So it was around the house, appears that there was some probably was in the house at sort of relationship, some some point. She may have sort of friendship but it also even lived there. The Court appears that it wasn’t really questions however, whether a marriage. At least not or not she was ever what what we would consider to one would call a wife, what be a marriage. one would think of as a A.R. at 41. partner. The Court also believes that her statement, It follows that whether we agree which is part of Exhibit 3, is with the IJ’s characterization of the probably true in the sense underlying evidence as credible vel non that it says that she married which led him to conclude that this was him so that he could obtain not a good faith marriage, A.R. at 40, is his permanent residence and irrelevant, as the statute itself gives the she wishes to withdraw her Attorney General (acting through his application but she also designee) the sole discretion to weigh the hopes that no harm comes to evidence. Courts have been zealous in him and that he’s allowed to their efforts to pressure our jurisdiction to stay in the country. That’s review administrative decisions, but that not an unreasonable position effort must fail under the overarching for a person to have. There reality that it is Congress that has the

9 power to decide the jurisdiction of the Foti v. INS, 375 U.S. 217, 229 (1963), and inferior federal courts. And IIRIRA makes ‘all matters on which the validity of the plain our inability to review precisely the final order is contingent,’ INS v. Chadha, issue presented here, that is, the relative 462 U.S. 919, 938 (1983) (internal weight of the evidence. quotations omitted).” Nyonzele, 83 F.3d at 979. In contrast, sectio n Tavarez argues that “[a] strikingly 1252(a)(2)(B)(ii) explicitly disallows similar issue of reviewability was review of discretionary decisions in the addressed in the case of Nyonzele v. INS, context of removal proceedings. The 83 F.3d 975 [(8th Cir. 1996)].” Pet. Suppl. jurisdictional holding of Nyonzele is no Br. at 2. The Nyonzele court noted that longer consistent with the passage of the hardship waiver at issue there “was IIRIRA. initially denied by the district director,” and that the “district director’s denial of a III. hardship waiver is not itself appealable.” CONCLUSION Id. at 979. It continued, “Because the BIA reviewed the waiver claim during the We hold that 8 U.S.C. § deportation proceedings, that decision is 1252(a)(2)(B)(ii) bars us from reviewing reviewable in this court.” Id. It also noted the discretionary denial of waivers under 8 that because “[e]ach of [the requests for U.S.C. § 1186a(c)(4). The statutory relief at issue] is a matter statutorily vested provisions that the Attorney General “in in the discretion of the Attorney General,” [his] discretion, may” remove the its review was “limited to determining condition on permanent residence without whether there has been an abuse of a joint application, and that the Attorney discretion.” Id. Petitioner thus urges us to General has the “sole discretion” to weigh hear the merits of this appeal under an the evidence and decide which evidence is abuse of discretion standard. credible, compel our conclusion. 8 U.S.C. § 1186a(c)(4) (emphasis added). We will But Nyonzele was decided before therefore deny the petition for review. the enactment of IIRIRA. When Nyonzele was decided, the relevant jurisdictional statute was 8 U.S.C. § 1105a (1994), which gave the courts of appeals jurisdiction to review all final orders of deportation. Jurisdiction then was more broad, and as the Eighth Circuit noted, its “review of final orders of deportation pursuant to 8 U.S.C. § 1105a(a) include[d] ‘all determinations made during and incident to the administrative proceeding . . . and reviewable together by the [BIA],’