Pena-Beltre v. Holder , 622 F.3d 57 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-2072
MANUEL PEÑA-BELTRE,
Petitioner,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Jose G. González-Hernández was on brief for petitioner.
Tim Ramnitz, Attorney, Office of Immigration Litigation, Tony
West, Assistant Attorney General, Civil Division, and Shelley R.
Goad, Assistant Director, were on brief for respondent.
October 13, 2010
LYNCH, Chief Judge. Manuel Peña-Beltre, a native and
citizen of the Dominican Republic, petitions for review of a final
order of removal issued by the Board of Immigration Appeals (BIA).
The BIA upheld an Immigration Judge's (IJ) finding of removability
and denial of Peña-Beltre's requests for (1) removal of the
conditions on his conditional lawful residence status and (2)
voluntary departure. Both the BIA and the IJ found Peña-Beltre had
engaged in marriage fraud in order to obtain an immigration
benefit. We deny his petition.
I.
Peña-Beltre entered the United States without inspection
on or about September 1, 1996. On January 25, 2001, he married a
United States citizen, Vilma Toro-Berrios. Within two weeks, on
February 6, 2001, Peña-Beltre filed an application to adjust his
status to that of lawful permanent resident on the basis that he
and Toro-Berrios were married and lived together as husband and
wife.
Under the Immigration and Nationality Act, an alien may
receive lawful permanent resident status by virtue of marriage to
a United States citizen. 8 U.S.C. § 1186a. If the marriage is
less than two years old when the alien receives permanent resident
status, the grant of such status is conditional. 8 U.S.C.
§ 1186a(1). The alien and spouse must submit a second petition to
remove the conditions, at which point the alien's lawful permanent
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status may be terminated if the government finds that the marriage
was not bona fide. 8 U.S.C. § 1186a(c),(d). If the conditions are
not removed within two-years, the alien's permanent resident status
is terminated. 8 U.S.C. § 1186a(c)(3)(C).
On April 12, 2002, Peña-Beltre and Toro-Berrios appeared
before an Immigration and Naturalization Service (INS)
Adjudications Officer. In separate sworn statements, they each
claimed that they had married for love and resided together as
husband and wife. The Officer granted Peña-Beltre lawful residence
on a conditional basis under 8 U.S.C. § 1186a. On March 1, 2004,
Peña-Beltre and Toro-Berrios filed an I-751 joint petition to
remove the conditions on Peña-Beltre's lawful permanent residence.
Like the sworn statements, the petition claimed that Peña-Beltre
and Toro-Berrios lived together as husband and wife.
In response to the I-751 joint petition, on November 14,
2005, Adjudication Officer Martin Garcia of the United States
Citizenship and Immigration Services (USCIS) conducted separate
interviews with Peña-Beltre and Toro-Berrios to assess the bona
fides of their marriage.1
Garcia first interviewed Toro-Berrios. When Garcia
confronted Toro-Berrios with inconsistencies in her testimony, she
admitted that the marriage was fraudulent. In both oral testimony
1
In the interim, USCIS and Immigration and Customs
Enforcement had assumed the relevant duties of the INS.
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and a sworn statement, Toro-Berrios stated that she had never lived
with Peña-Beltre and that Peña-Beltre had offered her $2,000 to
marry him and had paid $500. This confirmed a similar statement
Toro-Berrios made in a call to the INS on September 20, 2001, about
seven months before Peña-Beltre received lawful conditional
permanent resident status.2
Garcia then interviewed Peña-Beltre. He found
inconsistencies between Toro-Berrios' testimony and Peña-Beltre's.
They gave conflicting statements about the name of the person who
took Toro-Berrios' daughters to school, the year in which Toro-
Berrios had last been employed, and the person who gave Toro-
Berrios the necklace she was wearing. When Garcia confronted Peña-
Beltre with Toro-Berrios' admission, Peña-Beltre stated that he did
not know why she had said this and suggested it might be a product
of depression.
At the end of the interview, Garcia referred Peña-Beltre
to Agent Juan Rivera of the Immigration and Custom Enforcement's
(ICE) fraud division. In conducting a pat down search of Peña-
Beltre, Rivera discovered handwritten notes in his wallet. The
notes appeared to be answers prepared in anticipation of questions
about the contents of their apartment, the patterns of their daily
2
In that call, Toro-Berrios informed an INS investigator
that her marriage with Peña-Beltre was fraudulent and that she did
not live with him. She said that Peña-Beltre had promised her
$2,000 in exchange for marriage, gave her $500, but would not give
her the remainder of the money.
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living, and the members of Toro-Berrios' family. When Rivera
confronted Peña-Beltre with the notes, Peña-Beltre admitted that he
had not been living with Toro-Berrios for the past two years.
Peña-Beltre told Rivera that they had planned what to say
during the interview and gave a sworn statement that he married
Toro-Berrios to obtain an immigration benefit. Peña-Beltre denied
that he and Toro-Berrios had an agreement whereby he would provide
financial benefits to her in exchange for marriage. He admitted,
however, that an individual named Aladino Días arranged for him to
meet and marry Toro-Berrios in order to receive an immigration
benefit. According to Peña-Beltre, the couple had lived together
for two years before separating.
At the conclusion of the interview, Rivera served Peña-
Beltre with a Notice to Appear, which charged him with removability
under 8 U.S.C. § 1227(a)(1)(A) as an alien who sought to procure
immigration status by fraud or willful representation under 8
U.S.C. § 1182(a)(6)(C)(i). Shortly thereafter, USCIS denied Peña-
Beltre's and Toro-Berrios' joint petition to remove the conditions
on his resident status. On April 18, 2006, Peña-Beltre was served
with an additional charge of removability under 8 U.S.C.
§ 1227(a)(1)(D)(i), as his permanent resident status had been
terminated.
On April 11, 2006, Peña-Beltre filed a second I-751
petition. This petition requested a discretionary waiver of the
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joint petition requirements under 8 U.S.C. § 1186a(c)(4)(B). Peña-
Beltre claimed he was eligible for waiver because his marriage to
Toro-Berrios had been in good faith but ended in divorce. With the
petition, Peña-Beltre submitted an affidavit from Toro-Berrios.
The affidavit stated that their marriage was for love and that
their divorce resulted from a deterioration of the relationship.
On February 28, 2007, USCIS denied this petition.
Before the IJ, Peña-Beltre conceded removability but
denied having committed marriage fraud. He did not testify on his
own behalf. Instead, he presented testimony from three neighbors,
whose accounts of when they encountered Toro-Berrios near Peña-
Beltre's apartment did not align. The government introduced
testimony from immigration personnel, including Garcia and Rivera.
When asked about a videotape of his interviews of November 14,
2005, Garcia testified that it must have been misplaced. The
government also presented Toro-Berrios as a witness in the
expectation that she would repeat her prior admissions of marriage
fraud.
On the stand, however, Toro-Berrios did not make a
similar admission. Initially she testified that she did not recall
her November 14, 2005, interview with Garcia. When the government
presented Toro-Berrios' sworn statement from that interview, she
claimed that the statement was false and that Garcia had pressured
her into making it. Toro-Berrios admitted that she had never lived
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with Peña-Beltre, but claimed that they had married for love. She
claimed that they lived separately because her public housing
development was safer for her children and did not permit illegal
aliens to live in the apartments. According to Toro-Berrios, she
spent some weekends at Peña-Beltre's apartment.
On further questioning, Toro-Berrios admitted that she
had been living with another man, Felix Garcia-Torres, the father
of one of her children. She first testified that Garcia-Torres
moved into her apartment in approximately September, 2005. When
the government asked her if she had been living with Garcia-Torres
during the November 14, 2005, interview, Toro-Berrios recanted her
earlier testimony and stated that Garcia-Torres did not move in
with her until after her divorce from Peña-Beltre. In response to
questioning about the state of her relationship with Peña-Beltre at
the time of the interview on November 14, 2005, Toro-Berrios
invoked the Fifth Amendment and refused to testify further.
After she testified, the government introduced testimony
about a conference call the previous day in which Toro-Berrios
allegedly admitted to the government's lawyer and an ICE agent that
the marriage was fraudulent.
The IJ denied relief, finding that Peña-Beltre and Toro-
Berrios "pretended to have a marital relationship." The IJ found
Toro-Berrios not credible given the inconsistency of her statements
before both the court and immigration officials. The IJ found it
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relevant that Peña-Beltre did not testify and found the testimony
of his witnesses highly questionable given the tensions between
their accounts. Instead, the IJ credited the testimony of the
immigration officials who conducted the November 14, 2005,
interviews. Peña-Beltre's marriage fraud, the IJ held, rendered
him ineligible for his waiver petition and cast sufficient doubt
upon his moral character to foreclose voluntary departure.
The BIA affirmed. It held that there was "no evidence in
the record" to support Peña-Beltre's claim that he married Toro-
Berrios in good faith. The BIA credited the statements Peña-Beltre
and Toro-Berrios signed at the interview of November 14, 2005,
admitting fraud. It deemed it significant that Peña-Beltre refused
to testify and that Toro-Berrios invoked the Fifth Amendment when
questioned about her earlier statements.
II.
In his petition for review, Peña-Beltre makes three
claims. First, he contests the IJ's finding, affirmed by the BIA,
that he committed marriage fraud. Second, he claims that his due
process rights were violated both when the IJ drew an adverse
inference from Toro-Berrios' invocation of the Fifth Amendment and
when the IJ did not require that the government produce a missing
videotape of the November 14, 2005, interview. Third, he claims
that he was improperly denied voluntary departure.
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This court reviews the BIA's decision as well as any
portions of the IJ's opinion adopted by the BIA. Bonilla v.
Mukasey, 539 F.3d 72, 76 (1st Cir. 2008). We review the BIA's
conclusions of law de novo and its findings of fact under the
deferential substantial evidence standard. Toribio-Chavez v.
Holder, 611 F.3d 57, 62 (1st Cir. 2010). We may reverse the
agency's factual findings only if the petitioner shows that any
reasonable fact finder would have concluded to the contrary. Syed
v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004).
An alien spouse may remove the conditional basis of his
lawful permanent status in one of two ways. First, the alien and
his spouse may file a joint petition stating that the marriage is
bona fide and has not been judicially annulled or terminated for
reasons other than the death of a spouse. 8 U.S.C. § 1186a(c)(1).
After filing, the couple may be required to appear for a personal
interview concerning the facts of their petition. 8 U.S.C.
§ 1186a(c)(1)(B). In removal proceedings, the government bears the
burden of showing marriage fraud by a preponderance of the
evidence. 8 U.S.C. § 1186a(c)(3)(D).
Second, the alien may request a discretionary waiver of
the joint filing requirement if he shows that at least one of three
conditions obtains. 8 U.S.C. § 1186a(c)(4). The condition at
issue here allows waiver if the marriage was entered into in good
faith, the marriage was terminated for reasons other than death,
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and the alien was not at fault for failing to meet the joint
petition and interview requirements. 8 U.S.C. § 1186a(c)(4)(B).
The alien bears the burden of showing that he qualifies for a
discretionary waiver under this provision.
For Peña-Beltre, both paths to lawful resident status
require a showing that his marriage to Toro-Berrios was bona fide.
Any difference as to burdens is not material to this case. Here,
the evidence of marriage fraud is so overwhelming that it hardly
needs detailing. The government has more than met its burden of
proof. We rest on the BIA's and IJ's conclusions, which are amply
supported by the evidence we have described.
Peña-Beltre's purported due process claims fail. He
brings both claims for the first time in this court. Because Peña-
Beltre could have but did not raise these claims before the BIA, we
lack jurisdiction over them. Bollanos v. Gonzales, 461 F.3d 82, 87
(1st Cir. 2006).3
Peña-Beltre's request for voluntary departure also fails
for lack of jurisdiction. Peña-Beltre claims that the BIA erred in
3
These claims are not even colorable. The IJ did not err
in drawing an adverse inference from Toro-Berrios' choice to invoke
the Fifth Amendment. Adverse inferences may be drawn from silence
in removal hearings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1043-44
(1984). Nor did the IJ err in not requiring the government to
produce the missing videotape. In deportation proceedings, due
process requires that an alien not be prevented from reasonably
presenting his case. Orehhova v. Gonzales, 417 F.3d 48, 52 (1st
Cir. 2005). Here, Peña-Beltre had ample opportunity to cross-
examine the government's witnesses, provide his own testimony, and
introduce other testimony to challenge the government's claims.
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affirming the IJ's finding that he was ineligible for voluntary
departure because he was not, as required by 8 U.S.C.
§ 1229c(b)(1)(B), a person of "good moral character" for the
preceding five years. Peña-Beltre claims that he did not commit
marriage fraud, and that the IJ therefore abused her discretion in
denying his request. This court has no jurisdiction to review
denials of voluntary departure. 8 U.S.C. § 1229c(f); Hussain v.
Holder, 576 F.3d 54, 58-59 (1st Cir. 2009).
The petition is denied.
So ordered.
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