DaSilva v. Holder, Jr. , 592 F. App'x 1 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2487
LUCIANE MARIA DASILVA,
Petitioner,
v.
ERIC HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Harvey J. Bazile, on brief for petitioner.
Jessica E. Sherman, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Song Park,
Senior Litigation Counsel, and Stuart F. Delery, Assistant Attorney
General, Civil Division, on brief for respondent.
November 17, 2014
PER CURIAM. Petitioner Luciane Maria DaSilva seeks
review of a decision and order of the Board of Immigration Appeals
("BIA") affirming an order of an Immigration Judge ("IJ"). The IJ
found that DaSilva entered into a fraudulent marriage with a United
States citizen in order to procure illegal admission into the
United States as a lawful permanent resident, and thus ordered her
removed. For the reasons set forth below, we deny her petition for
review.
On January 5, 2007, DaSilva, a native and citizen of
Brazil, married Rafael Gonzalez, a United States citizen. On July
26, 2007, DaSilva's immigration status was adjusted to that of a
lawful permanent resident based on her marriage. On June 6, 2010,
she submitted a naturalization application to United States
Citizenship and Immigration Services ("USCIS") that was denied in
July 2011. In March 2011, after determining that DaSilva obtained
her permanent-resident status by entering into a fraudulent
marriage with Gonzalez, the Department of Homeland Security ("DHS")
commenced removal proceedings against her. DaSilva was charged
with removability under 8 U.S.C. § 1227(a)(1)(A), and her
inadmissability was based on 8 U.S.C. § 1182(a)(6)(C)(I).
At the removal hearing, Maria Helena Knoller was the
primary witness for DHS. Knoller, previously an immigration-form
preparer, had pleaded guilty in United States District Court to
concealing and shielding illegal aliens and to aiding and abetting
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marriage fraud. The record included Knoller's conviction documents
as well as a sworn declaration identifying aliens for whom she had
arranged fraudulent marriages. The documents reflected that
Knoller had facilitated fraudulent marriages for thirty-two couples
and had documented the marriages in her records by the couples'
initials, date of marriage, and place of marriage. One of the
couples listed, "R.G." and "L.M.D.", married on January 5, 2007 in
Brattleboro, VT, corresponded to the date and location of Gonzalez
and DaSilva's marriage.
Knoller testified that she received $7,800 from DaSilva
to arrange a fraudulent marriage, that she introduced DaSilva to
Gonzalez, and that Gonzalez also received compensation for his
participation in the marriage.
During the removal hearing, DaSilva testified that she
met Gonzalez at a friend's house in Springfield, Massachusetts on
Thanksgiving Day, 2005 and that they decided to get married on
January 5, 2007 at a ski resort in Vermont because they were in
love. She explained that she later separated from Gonzalez after
he impregnated another woman and spent several months incarcerated.
Additionally, DaSilva admitted that although she and Gonzalez did
not live together after August 2010, she falsely reported that they
were both living at her employer's residence after that date. She
included the false information on her naturalization application,
lied under oath to that effect during her naturalization interview,
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and arranged and filed a fraudulent letter from her employer with
USCIS.
The IJ found that Knoller's testimony was credible, as it
was consistent with her declaration and the criminal information
filed against her in district court. The IJ determined that
DaSilva, on the other hand, was not credible, noting that she could
not recall the name of the friend who introduced her to Gonzalez,
Gonzalez's sister's name, the name of the town in Vermont where she
and Gonzalez married, the name of the woman who had Gonzalez's
child while DaSilva and Gonzalez were still married, or where
Gonzalez was incarcerated for three months during their marriage,
and that she admitted to misrepresenting her living situation. The
IJ concluded that DHS met its burden of establishing by clear and
convincing evidence that DaSilva was subject to removal for having
fraudulently married Gonzalez in order to procure an immigration
benefit. The BIA affirmed and adopted the IJ's decision.
We review the IJ's findings of fact and determinations of
credibility under the substantial evidence rule, upholding the
decision "so long as it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole." Syed
v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004) (internal quotations
and citation omitted). "Since the IJ has the best vantage point
from which to assess the witnesses' testimonies and demeanors," our
review of the IJ's factual findings and credibility determinations
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is highly deferential. Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.
2008).
DaSilva contends that the government did not meet its
burden of proving by clear and convincing evidence that she was
subject to removal as charged. She avers that the IJ erred in
crediting Knoller's testimony, in discrediting her own testimony,
and in not requiring the government to present documentary evidence
that the marriage was fraudulent.
We disagree. Substantial evidence supports the IJ's
credibility determinations. First, Knoller's testimony that
DaSilva paid her to arrange a fraudulent marriage was corroborated
by her declaration and the information filed against Knoller in her
criminal proceedings. DaSilva provided minimal evidence to refute
this testimony. Cf. Cho v. Gonzales, 404 F.3d 96, 103–04 (1st Cir.
2005) (concluding that alien made strong showing that marriage was
legitimate by introducing evidence that they engaged in lengthy
courtship, cohabitated, enrolled jointly in health-insurance
policy, opened joint bank accounts, filed joint tax returns,
entered auto-financing agreements, and secured a joint credit
card).
Second, DaSilva's testimony lacked detail, was
inconsistent with the documents in the record, and was unreliable.
See, e.g., Syed, 389 F.3d at 252 (holding that respondent's
vagueness and contradiction supported adverse credibility
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determination). At the hearing, DaSilva was unable to recall
specifics about her "husband" and her married life. See Rodriguez
Del Carmen v. Gonzales, 441 F.3d 41, 43-44 (1st Cir. 2006) (holding
that wife's inability to recall important details of her married
life sustained finding that she never lived with or had relations
with alien). Moreover, DaSilva admitted to submitting a fraudulent
document, lying under oath, and including false information on her
naturalization application. Cf. Syed, 389 F.3d at 252 (holding
that IJ's adverse credibility finding entitled to deference where
IJ's reasoning was based in part on alien's submission of
fraudulent letter, undermining alien's credibility).
As the IJ's credibility findings are supported by
substantial record evidence, we DENY DaSilva's petition for review.
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