Ysidro Alberto Oropeza-Wong v. Alberto R. Gonzales, Attorney General

406 F.3d 1135, 2005 WL 1088938
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 10, 2005
Docket03-71446
StatusPublished
Cited by73 cases

This text of 406 F.3d 1135 (Ysidro Alberto Oropeza-Wong v. Alberto R. Gonzales, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ysidro Alberto Oropeza-Wong v. Alberto R. Gonzales, Attorney General, 406 F.3d 1135, 2005 WL 1088938 (9th Cir. 2005).

Opinion

D.W. NELSON, Senior Circuit Judge.

Ysidro Oropeza-Wong (“Oropeza”), a Mexican national, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) which (1) denied-him a statutory waiver of the joint filing requirement for removal of the conditional basis of his permanent resident status on the ground that he entered into his marriage to U.S. citizen Melissa Renteria 1 in bad faith, 8 U.S.C. § 1186a(c)(4)(B), (2) ordered him removed on the basis of marriage fraud, 8 U.S.C. § 1227(a)(1)(G)(i), and (3) denied his request for voluntary departure, 8 U.S.C. § 1229c. 2 Oropeza contends that he is entitled to have the conditional basis of his permanent resident status lifted because, although the marriage was dissolved within two years, he entered into it in good faith, He offers río separate argument with respect to the order of removal, but asserts that it was an abuse of discretion to deny him voluntary departure. The government contends that we do not have jurisdiction to entertain Oropeza’s claims. We conclude that while we lack jurisdiction over Oropeza’s voluntary departure claim, we retain jurisdiction over his challenge to the order of removal and to his underlying *1139 claim that, because his marriage was entered into in good faith, he is entitled to a statutory waiver that would result in his receiving permanent resident status. We further conclude, however, that the BIA’s rejection of that underlying claim is supported by substantial evidence. We therefore dismiss the petition in part and deny it in part.

I. Factual and Procedural Background

Oropeza met Renteria in January 1993 when both worked at the same company. He testified that after dating for about one year, the two were married in a civil ceremony in Mount Vernon, Washington, on April 14, 1994. According to Oropeza, following their marriage, he and Renteria lived with her family until November 1994, when they were able to move into an apartment of their own. He added that in January 1995 he left Washington to take a temporary job in Alaska, where he spent three to five weeks. Oropeza stated that in May 1995, he confronted Renteria with his suspicion that she was being unfaithful to him, and that, after Renteria suggested they divorce, the two separated in June 1995. The marriage ended in divorce on November 27, 1995, nineteen months after it began.

The Immigration and Naturalization Service (“INS”) granted Oiopeza conditional permanent resident status on September 15, 1994, and terminated that status on September 15, 1996. On August 16, 1996, Oropeza filed a Petition to Remove the Conditions on Residence (hereinafter “Form 1-751”) with the INS. Because, under the statute, an alien is not permitted to file the requisite joint petition with an ex-spouse, Oropeza applied for a statutory waiver of the joint filing and interview requirements on the ground that his was a good faith marriage that had been terminated by divorce. See § 1186a(c)(4)(B). Oropeza’s application was denied on June 3, 1998. On June 10, 1998, he was served with a Notice to Appeal', stating that his conditional resident status had been terminated and charging him with being subject to removal for marriage fraud under § 1227(a)(1)(G)®.

At his removal hearing, Oropeza sought review of the denial of his statutory waiver and a determination that he was entitled to permanent resident status and was therefore not removable. He was the sole witness to testify. The government presented no witnesses. In addition to testifying, Oropeza provided documentary support to show that he entered his marriage in good faith, including: a jointly filed tax return; a lease for an apartment dated November 1994; eight canceled checks from a joint account; telephone bills listing Oropeza and Renteria as residing at the same address; an application for life insurance; and an application for vehicle title. Some of these documents were unsigned by Orope-za and Renteria, including the lease; there was no evidence that others, such as the applications for life insurance or automobile title, had been filed. Oropeza also provided a letter from a nurse who had treated him over an extended period of time stating that his wife had accompanied him on most office visits, and letters that Renteria had written to him during periods of separation.

The hearing also addressed aspects of Oropeza’s life before and after his marriage to Renteria that raised questions as to his credibility, including his failure to list his children on forms filed with the INS or to mention them in an interview with immigration officials, and his relationship with his current wife, Edith Solis (“Solis”). Prior to his marriage, to Rente-ria, Oropeza fathered two children in Mexico: Imelda, born in 1984, and Alberto, born to Oropeza and Solis in 1987. The government questioned Oropeza about the failure to list his children -both on the petition that Renteria filed on his behalf *1140 and on the first Form 1-751 that he, himself, filed. Oropeza stated that Renteria knew about his children but chose not to list them and that the attorneys who had filled out his 1-751 had omitted the children due to an error. Oropeza also testified that he did not mention his children during his interview with the INS examiner because he thought that they were not relevant to the immigration decision as they were not U.S. citizens.

The Immigration Judge (“IJ”) also questioned Oropeza about INS records of a 1989 detention in Anchorage, Alaska, prior to his marriage to Renteria, focusing on the statements on the forms that indicated that Solis, whom Oropeza was apprehended with, was his wife. Oropeza responded that he was not married to Solis at the time, and that, although Solis would sometimes refer to him as her “husband,” she was his “girlfriend.” After his separation from Renteria, Oropeza returned to Mexico and resumed a relationship with Solis. They underwent a marriage ceremony in Alaska on April 4, 1997.

In a written opinion, the IJ found that Oropeza was not a credible witness because of his failure to list his children on the INS forms and mention them during his interview, the inconsistencies in his testimony about Solis, and his demeanor during cross-examination. The IJ also stated that Oropeza’s decision to return to Mexico after his divorce to seek out Solis suggested that “respondent appeared to have married Melissa [Renteria] solely for his papers and then he was going to return to Edith Solis.” The IJ commented on Oropeza’s departure for Alaska within eight months of his marriage to Renteria, and on the lack of any corroborating testimony about the bonafides of the marriage by family or friends. She concluded that the marriage had not been entered into in good -faith and denied Oropeza the statutory waiver. She further found that the INS had established Oropeza’s removability for marriage fraud by “clear, convincing, and unequivocal evidence” and denied his request for voluntary departure.

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406 F.3d 1135, 2005 WL 1088938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ysidro-alberto-oropeza-wong-v-alberto-r-gonzales-attorney-general-ca9-2005.