Jing Lin v. Holder , 759 F.3d 110 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2134
JING LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Randy Olen on brief for petitioner.
Charles S. Greene, III, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and Douglas E. Ginsburg,
Assistant Director, on brief for respondent.
July 14, 2014
LYNCH, Chief Judge. Jing Lin, a citizen of China,
received conditional permanent resident status in the United States
in February 2002, through her marriage to an American citizen.
Because that marriage ended in divorce, Lin was unable to file a
successful joint petition with her spouse to remove the conditions.
Instead, she applied for waiver of the joint petition requirement,
arguing that she had entered into the marriage in good faith. The
Immigration Judge ("IJ") found that Lin failed to meet her burden
to demonstrate that the marriage was entered into in good faith,
denied Lin's application, and granted her removal from the United
States through voluntary departure. The Board of Immigration
Appeals ("BIA") adopted and affirmed the IJ's decision. Because
the order is supported by substantial evidence, we deny Lin's
petition for review.
I.
In May of 2000, petitioner Jing Lin, a Chinese citizen
then still in China, married Thai Baotai Huynh, an American
citizen. They had been introduced remotely by Lin's great aunt
around February of that year, when Lin's great aunt looked for an
American for Lin because "she wanted to come to the U.S." Lin's
great aunt told Lin that Huynh was a "good person" with "a good job
and a good income." After exchanging cards and phone calls for
three months, Huynh and Lin married while Huynh visited China for
five weeks.
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The couple then lived apart for almost two years, Lin in
China and Huynh in the United States. On February 22, 2002, Lin
finally entered the United States and was granted conditional
permanent resident status on the basis of her marriage to Huynh.
The couple lived in California for about four months,
during which Huynh was "usually not home." Lin did not know where
Huynh went during this period. Her great aunt testified that Huynh
was a driver whose job required him to leave for long periods of
time. Lin did not know or learn background information about
Huynh's family and life in California.
At the end of those roughly four months, Lin moved to her
great aunt's home in New York, then to Rhode Island where her
cousin referred her to a job. Lin and Huynh continued to call each
other, and each spouse visited the other about three times. The
couple also filed joint tax returns in 2002 and 2003. Those
returns indicate that Lin worked in Rhode Island and that Huynh was
a full-year resident of Indiana.
In 2003, Lin began an extramarital affair. When Huynh
visited Lin in February 2004, he discovered that Lin was pregnant
by another man. Huynh left, and Lin sought a divorce in Rhode
Island state court. After failing to appear in the Rhode Island
proceedings, Huynh had a default judgment entered against him. The
divorce became final on April 1, 2009.
By this time, Lin had already sought to remove the
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conditions on her permanent residency. Lin and Huynh had filed a
joint petition in December 2003. Under 8 U.S.C. § 1186a(c)(1),
(d)(2), a married couple can remove the conditions on the
noncitizen spouse's residency by filing a joint petition during the
90 days preceding the two-year anniversary of the grant of
conditional permanent residence. The joint petition was denied
after Lin and Huynh's divorce.
A noncitizen spouse can seek a waiver of the joint
petition requirement by showing, "inter alia, '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) and the alien was not at fault in failing to
meet the [joint filing] requirements.'" Kinisu v. Holder, 721 F.3d
29, 31 (1st Cir. 2013) (alteration in original) (quoting 8 U.S.C.
§ 1186a(c)(4)(B)).
Lin filed for such a waiver, which was denied on February
17, 2010. She then received a Notice to Appear charging her with
removability under 8 U.S.C. § 1227(a)(1)(D)(i), since the status
allowing her lawful residence -- her marriage to an American
citizen -- had been terminated. Lin conceded removability but
sought review of the waiver denial. After a hearing, the IJ denied
Lin's request for relief and granted voluntary departure. The IJ
found that Lin failed to meet her burden to show she entered into
her marriage in good faith. In particular, the IJ pointed to Lin's
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great aunt's testimony that Lin wanted to marry in order to come to
the United States, the lack of documentary evidence showing
commitment to the marriage, and Lin and Huynh's distant
relationship during the marriage, evidenced by several factors.
On August 21, 2012, the BIA adopted and affirmed the IJ's
decision, specifically referencing and describing parts of that
decision. This petition followed.
II.
Where "the BIA adopts the IJ's opinion and discusses some
of the bases for the IJ's decision, we have authority to review
both the IJ's and the BIA's opinions." Vallejo Piedrahita v.
Mukasey, 524 F.3d 142, 144 (1st Cir. 2008) (quoting Ouk v.
Gonzales, 464 F.3d 108, 110 (1st Cir. 2006)) (internal quotation
marks omitted). We review the BIA's factual findings using the
"quite deferential" substantial evidence standard. Kinisu, 721
F.3d at 34 (quoting Mediouni v. INS, 314 F.3d 24, 27 (1st Cir.
2002)) (internal quotation marks omitted). Under this standard, we
do not disturb the BIA's findings unless "the record evidence would
'compel a reasonable factfinder to reach a contrary
determination.'" Id. (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st
Cir. 2008)).
The determination that a waiver applicant failed to show
that she entered into a marriage in good faith is a factual finding
on which the applicant bears the burden of proof. McKenzie-
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Francisco v. Holder, 662 F.3d 584, 586-87 (1st Cir. 2011). To make
the required showing, the applicant must demonstrate that, "at the
time that the newlyweds plighted their troth, [s]he intended to
establish a life with h[er] spouse." Id. at 587. While good faith
is evaluated at the time of the marriage, as Lin emphasizes,
activity before and after the moment of marriage is relevant to the
inquiry. See, e.g., 8 C.F.R. § 1216.5(e)(2) (directing
consideration of evidence demonstrative of "the amount of
commitment by both parties to the marital relationship"); Reynoso
v. Holder, 711 F.3d 199, 207 (1st Cir. 2013) (referencing length of
cohabitation and documentary evidence as relevant evidence in a
good faith inquiry).
The record does not compel the conclusion that Lin
entered into her marriage in good faith. After all, Lin's marriage
to an American citizen had been arranged while Lin was still in
China because Lin wanted to move to the United States. The couple
lived apart for nearly all of their marriage. During the four
months in which they lived together, Huynh was usually away, and
for reasons unknown to Lin. Lin also failed to offer any
documentary evidence, such as a joint bank account or general
commingling of assets, which typically accompanies a valid
marriage. See Kinisu, 721 F.3d at 35 (stressing the importance of
documentary evidence). Nor did Lin know basic details about her
husband, his family, and his life before they met. Further, Lin
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began an affair in 2003 with another man. Considering all of these
facts, a reasonable factfinder could easily conclude that Lin did
not enter her marriage in good faith.
Lin principally argues that these facts are similar to
those of Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005), in which
this court reversed the BIA's finding that the petitioner had
failed to demonstrate a good faith marriage.1 Lin suggests that in
Cho, as in her case, the couple engaged in a two-year long-distance
relationship involving phone calls and visits, followed by a period
of cohabitation lasting less than a year and involving an
extramarital affair.
Cho is readily distinguishable. First, during the nearly
two-year premarital courtship in Cho, the couple visited each other
repeatedly to meet each other's families and to decide whether
their marital residence would be the United States or Taiwan. Id.
at 103. Here, Lin was introduced to Huynh so that she might move
to the United States, she met him once on the same five-week visit
to China during which they married, and she never met and knew
little about Huynh's family.
Second, the couple in Cho "jointly enrolled in a health
1
Lin makes a number of other arguments not presented to the
BIA, including that the IJ's discussion of Lin's credibility
requires reversal. This court lacks jurisdiction over arguments
not pressed before the BIA, and we disregard them. Shah v. Holder,
___ F.3d ___, 2014 WL 2959018, at *4 (1st Cir. July 2, 2014);
Kinisu, 721 F.3d at 59.
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insurance policy, filed tax returns, opened bank accounts, entered
into automobile financing agreements, and secured a credit card."
Id. Lin and Huynh only filed two joint tax returns, and both of
those returns showed that the couple lived in separate states --
she in Rhode Island and he in Indiana.
Third, the couple in Cho lived together for ten months
before the petitioner's husband asked for a separation. Id. Here,
the couple lived together for about four months, during which Lin's
husband was usually away, and Lin initiated the divorce
proceedings. Finally, the extramarital affair in Cho involved the
petitioner's husband and was unknown to the petitioner at the time
of marriage. Id. at 104. By contrast, the petitioner here engaged
in the affair.
Lin's remaining argument over which we have jurisdiction
is that the BIA and IJ erred by relying on her extramarital affair.
The parties agree that the affair began three years after her
marriage and eighteen months after she moved to the United States.
Lin argues, however, that the affair is too remote in time to be
relevant to her intent at the time of the marriage. This
difference of views is of no moment. The other evidence was
substantial and more than sufficient.
The decisions by the BIA and IJ are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Kinisu, 721 F.3d at 34 (quoting Mediouni,
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314 F.3d at 27) (internal quotation mark omitted). As a result, we
deny the petition for review.
So ordered.
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