Duque-Caceres v. Holder , 573 F. App'x 11 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1246
OMAR ANTONIO DUQUE-CÁCERES,
Petitioner,
v.
ERIC H. 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,
Torruella and Howard, Circuit Judges.
Ramón M. González, on brief for petitioner.
Wendy Benner-León, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Assistant Attorney General, Civil Division, and Anthony W.
Norwood, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
July 29, 2014
TORRUELLA, Circuit Judge. Petitioner Omar Antonio Duque-
Cáceres ("Duque"), a native and citizen of Venezuela, seeks review
of a final order of deportation issued by the Board of Immigration
Appeals ("BIA"). The BIA dismissed his appeal of the Immigration
Judge's ("IJ") decision denying Duque’s application for a waiver of
the joint filing requirements to remove the conditions of his
residency ("I-751 waiver").
Because the administrative record provides substantial support
for the findings of both the IJ and the BIA, and does not compel a
contrary conclusion, we deny Duque's petition for review.
I. Background
A. Duque's marriage and status adjustment
On May 2, 2002, Duque, a native and citizen of Venezuela,
was admitted to the United States as a visitor. On December 10,
2004, Duque married Gladys López ("Gladys"), a U.S. citizen.
Following the marriage, Duque's status was adjusted to lawful
permanent resident on a conditional basis.1
1
Pursuant to § 216(a)(1) of the Immigration and Naturalization
Act ("INA"), 8 U.S.C. §§ 1186a(a)(1), any alien who obtains lawful-
permanent-resident status based on marriage to a United States
citizen, obtains said status on a conditional basis. In order to
remove the conditional basis, the married couple must file a joint
petition to remove the conditions -- i.e., an I-751 petition -- and
appear for an interview with the Department of Homeland Security
("DHS") to answer questions and provide information showing that
the marriage is bona fide. 8 U.S.C. §§ 1186a(c)(1), (d); 8 C.F.R.
§§ 216.4.
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B. Denial of Duque's joint I-751 petition
On January 11, 2008, Duque and Gladys submitted a joint
I-751 petition to the United States Citizenship and Immigration
Services (the "CIS"), seeking to remove the conditional basis of
Duque's lawful permanent-resident status. On April 30, 2009 they
appeared for an interview with a CIS officer. During Gladys's
individual interview, she withdrew from the joint petition and
claimed that: (1) she and Duque had lived in different residences
since his arrival in Puerto Rico; (2) she and Duque had never lived
together as husband and wife; and (3) she had married Duque because
she wished to help him, but also because he offered to pay her
$2,000 in exchange for her assistance in securing lawful residency.
Unsurprisingly, the CIS denied the joint petition and
terminated Duque's permanent-resident status. In its decision, the
CIS stated that Gladys admitted that the joint petition contained
false statements, and that the credit cards presented to the CIS
officer by Duque to evince joint accounts -- purportedly held by
both Duque and Gladys -- were actually held in Duque's sole
possession and were only provided to Gladys the week of the
interview. The decision also mentioned that the CIS interviewer
offered Duque the opportunity to rebut Gladys's statements, and he
initially claimed that her statements were false. However, when
asked later if he wanted to change anything in his statement, Duque
admitted that he and Gladys never lived together as husband and
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wife, that she married him as a favor, and that he would provide
Gladys with monetary aid when necessary.
C. Removal proceedings
On May 5, 2009, the Department of Homeland Security
("DHS") commenced removal proceedings against Duque. Appearing
with counsel before the IJ, Duque admitted all of the allegations
against him, save for the allegation that his marriage was
fraudulent, and he challenged the charge of removability. At the
hearing, Duque indicated that he was seeking review of the CIS's
termination of his permanent-resident status, that he had divorced
Gladys on June 5, 2009, and that he had applied for an I-751
waiver.2 In response, the IJ continued the proceedings until the
CIS ruled on Duque's I-751 waiver petition. The IJ could then
review the CIS's decision on the I-751 waiver, if necessary.
D. Denial of the I-751 waiver
In response to Duque's I-751 waiver petition, the CIS
sent Duque a notice instructing him to submit evidence or
supporting documents in order to establish the legitimacy of his
marriage to Gladys. Duque made no submissions in response to the
2
An alien is permitted to seek a waiver of the joint filing and
interview requirements to remove the conditional basis of his
resident status if the marriage ended in divorce. INA
§ 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B). In order to qualify for
this waiver, the alien must show that: (1) he entered into the
qualifying marriage in good faith; (2) the marriage has terminated,
except through death of his spouse; and (3) he was not at fault for
failing to meet the I-751 filing and interview requirements. Id.
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CIS's request for evidence.
On December 24, 2009, the CIS denied Duque's I-751 waiver
petition. In its decision, the CIS noted the procedural history of
Duque's applications -- specifically, his prior joint I-751
petition which the CIS denied. The CIS also stated that Duque
"failed to submit any evidence with the waiver petition to
establish that [the] qualifying marriage was entered into in good
faith." As a result, and incorporating by reference the reasoning
contained in its original denial decision, the CIS found that Duque
failed to establish the bona fides of his marriage to Gladys and,
thus, his eligibility for a waiver.
E. Review by the Immigration Court
Duque sought review of the CIS's denial of his I-751
waiver petition, asking the IJ to overturn the CIS's decision. On
December 8, 2010, Duque and his two witnesses -- Luis Manuel
Hernández ("Hernández") and Jamie Luis Landénez ("Landénez") --
appeared before the IJ to testify in support of Duque's I-751
waiver petition.
1. Duque's testimony
Duque testified that he and Gladys had lived together
from the date of their marriage until April 30, 2009, when they
"had a problem in the second immigration appointment." According
to Duque, Gladys was having an affair with another man. Hernández
-- Duque's friend and witness -- told him that Gladys had moved to
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another town to live with the man with whom she was having an
affair. Duque testified that, upon hearing this news, he
immediately filed for divorce. On June 5, 2009, Duque and Gladys
divorced, and she married her new partner on June 28, 2009.
Duque was asked why Gladys testified that she did not
live with Duque and that he had paid her to marry him so that he
could obtain immigration benefits. Duque responded that Gladys was
lying because she wanted to "get rid" of him due to her affair.
Duque denied having admitted at an earlier hearing that he never
lived with Gladys.
Though Duque alleged that Gladys's five-year-old son
Javier lived with them, Duque could not recall the child's last
name or the name of Javier's father, and he stated that he never
celebrated Javier's birthday with him.
Duque testified that he and Gladys lived in an apartment
on Wilson Street, and that his friend, Hernández, had visited them
at the apartment several times for social occasions, such as
Duque's birthday in 2008. Duque indicated that Hernández had known
Gladys prior to her meeting Duque and that Hernández had, in fact,
introduced Gladys to Duque. Duque, however, could not remember
where he was first introduced to Gladys.
Next, Duque claimed that his other friend, Landénez --
who would later testify in his support -- had met with Gladys and
Duque two to three times and that Landénez had attended his 2008
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birthday party. The IJ pointed out that Duque previously claimed
that only four people, of which Landénez was not one, had attended
his birthday party. Duque responded that he might have been
mistaken, but that he was certain Landénez had met Gladys on his
birthday in 2006.
As evidence of his legitimate marriage to Gladys, Duque
asserted that at the time of the submission of his first petition
-- i.e., the joint I-751 petition submitted with Gladys -- he
proffered a 2007 lease agreement, a joint bank account statement,
a joint medical insurance plan, and joint Sears and JC Penney
credit cards. Though he had lived at the apartment since 2005,
Duque testified that he did not have a lease from before 2007
because the owner had not required one until that time. Duque
claimed that he did not have a lease for 2008, 2009, and 2010
because he told his landlord he was thinking of moving elsewhere
due to troubles with Gladys and the owner did not require him to
sign a new lease.
The IJ noted that Duque had failed to provide the
Immigration Court with any documentary evidence of a shared life
with Gladys –- a task he acknowledged he was required to fulfill -–
and that he had failed to submit any of the documents he claimed to
have given to the CIS interviewer. In response, Duque testified
that he believed that the IJ would have all the evidence that was
in his file from the submission of his joint I-751, and that he
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wanted the IJ to consider the evidence filed earlier as part of his
joint I-751, though he was unable to recall precisely what evidence
he had previously submitted.
The IJ confronted Duque with Gladys's adverse statements
during her CIS interview that she never lived with Duque and that
he paid her money to marry him. The IJ questioned Duque on
whether, after originally denying Gladys's statements at the
interview, he had recanted his story to the interviewer and
admitted Gladys's statements to be true. Duque claimed to not
remember his previous change of heart.
2. Hernández's and Landénez's testimony
Hernández testified next. Hernández first claimed to
have met Gladys and Duque when they married in 2004, but later
recanted and stated he met them both before they married. Though
he could not remember the approximate date when he met Gladys,
Hernández indicated that it was prior to meeting Duque. Later,
however, Hernández testified that he had met Duque first. Although
Hernández first testified that he was unaware of anyone living in
the apartment with Gladys and Duque, he subsequently claimed that
Gladys's son also lived with them.
Hernández claimed that he had seen Gladys with another
man, but he did not testify consistently as to what year he
witnessed the affair -- first claiming that he saw Gladys and
another man in 2005 but later stating that he saw them in 2008.
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Lastly, though Duque stated that Hernández's wife joined Duque,
Gladys, and Hernández on social outings, Hernández claimed that she
never did.
Landénez, Duque's second witness, initially testified
that Gladys had a son, but later stated that he was unsure. He did
testify that he never saw any children in Duque’s apartment during
any of his visits to Duque's home. Landénez contradicted Duque’s
testimony that Landénez had met Gladys in 2006, and instead claimed
to have met her at their wedding in 2004.
F. The IJ's decision
On December 8, 2010, the IJ denied Duque's request for an
I-751 waiver and his request for voluntary departure, and ordered
his removal from the United States. The IJ based his decision on
the finding that Duque and his witnesses were not credible, and
hence, Duque failed to prove that his marriage to Gladys was
legitimate.
The IJ noted the myriad inconsistencies between and
within the testimonies of the three men. The IJ also noted that,
while testifying, Duque "seemed lost to respond, he was evasive[,]"
and that his "demeanor was that of someone who is not telling the
truth or is not sure about what he is saying."
Accordingly, the IJ found that Duque provided no evidence
to support the proposition that he had entered into a good-faith
marriage with Gladys, and that he provided no evidence to overcome
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the CIS’s initial decision that the joint I-751 petition contained
false information. Thus, the IJ held that Duque was ineligible for
an I-751 waiver of the joint filing requirements. Because the IJ
found that Duque provided false testimony in both the hearing as
well as his interview with the CIS, the IJ denied Duque's request
for voluntary departure on the basis that Duque failed to show good
moral character.3
G. The BIA's decision
Duque appealed the IJ's decision to the BIA. Duque
argued that the CIS failed to conduct a second interview to
determine whether his marriage was bona fide, and did not allow him
to testify or submit evidence to support his claim. Duque took
issue with the IJ's allegedly excessive questioning during the
hearing and argued that this prevented proper cross-examination by
his attorney. Further, he argued that the CIS erred when it denied
his waiver request by simply incorporating by reference the
reasoning stated in the agency's denial of his joint I-751
petition. Duque, however, did not appeal the IJ's finding that his
witnesses were not credible, and that he had failed to provide
3
8 U.S.C. § 1229c(b)(1), requires, among other things, that in
order to establish eligibility for voluntary departure the alien
must have been a person of good moral character for at least five
years immediately preceding the application for voluntary
departure. Further, decisions concerning voluntary departure fall
within the discretion of an Immigration Judge. Kandamar v.
Gonzales, 464 F.3d 65, 69 (1st Cir. 2006) (stating that voluntary
departure is a "privilege, not a right" and within the discretion
of the IJ) (quoting Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st
Cir. 2005)) (internal quotation marks omitted).
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sufficient evidence to support his petition.
On February 4, 2013, the BIA dismissed Duque's appeal
from the IJ's decision denying his application for an I-751 waiver.
The BIA rejected all of Duque's procedural arguments and concluded
that Duque did not challenge the IJ's adverse credibility
determinations, the findings relating to his failure to meet his
burden of proof, or the denial of his request for voluntary
departure. Duque's timely appeal followed.
II. Discussion
We review the BIA's order under the deferential
"substantial evidence" standard. Kinisu v. Holder, 721 F.3d 29, 34
(1st Cir. 2013). We will uphold the BIA's decision if "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 quotation marks omitted) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Accordingly, this court
will not reverse factual determinations unless the record evidence
would "compel a reasonable factfinder to reach a contrary
determination." Kinisu, 721 F.3d at 34 (quoting Chhay v. Mukasey,
540 F.3d 1, 5 (1st Cir. 2008)) (internal quotation marks omitted).
The credibility of a witness is a question of fact. McKenzie-
Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).
Also, "[t]his court has jurisdiction to review a final
order of removal only if 'the alien has exhausted all
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administrative remedies available to the alien as of right.'"
Kinisu, 721 F.3d at 34 (quoting 8 U.S.C. § 1252(d)(1)). "The law
of this circuit is clear that, if a petitioner fails to press an
argument before the BIA, 'the petitioner has not exhausted [his]
administrative remedies' as to that issue, which, 'in turn,
forecloses this court from exercising jurisdiction over [the
issue].'" Id. (quoting Chhay v. Mukasey, 540 F.3d at 5-6); see
also Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006).
Under § 216(c)(4) of the INA, 8 U.S.C. § 1186a(c)(4), the
Attorney General may remove the conditional basis of an alien’s
residency on the basis of a marriage to a U.S. citizen. The
Attorney General may grant a waiver of the joint filing requirement
to remove the conditional status if the alien establishes that “the
qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated.” Id. The
petitioner carries the burden of proving that the marriage was
entered into in good faith. Kinisu, 721 F.3d at 34 (citing
McKenzie-Francisco, 662 F.3d at 586-87).
In his petition for review, Duque argues that: (1) the IJ
erred in determining that Duque failed to provide sufficient
evidence in support of his I-751 waiver petition ; (2) the IJ erred
in finding his witnesses not credible; (3) the IJ erred in denying
his application for voluntary departure; and (4) the IJ and BIA
erred by upholding the CIS's decision on his I-751 waiver petition
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in violation of its own practice and procedures, resulting in a
violation of Duque's due process rights. We address each of these
arguments in turn.
A. Duque's unexhausted arguments
The BIA found, correctly, that Duque failed to raise
before it several challenges to the IJ's findings. Specifically,
Duque failed to challenge before the BIA: the IJ's adverse
credibility findings of Duque's testimony and that of his
witnesses; the IJ's finding that Duque failed to satisfy his burden
of proof showing that he entered into his marriage with Gladys in
good faith; and the IJ's denial of his application for voluntary
departure. Unfortunately for Duque, his failure to raise these
challenges with the BIA deprives this court of jurisdiction to
review them. Jing Qing Wu v. Holder, 705 F.3d 1, 3 (1st Cir.
2013); see also Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008)
(stating that claims not presented to the BIA are not reviewable).
We need go no further.
B. Duque's due process claims
We do have jurisdiction to consider on of Duque's
arguments: that the IJ and the BIA erred by allowing the CIS to
adjudicate his I-751 waiver petition in violation of the CIS's own
practice and procedure. Duque points to an internal memo released
by then Acting Associate Director of the Domestic Operations
Directorate of the CIS, according to which "[a]n IJ cannot review
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an I-751 petition . . . . unless [the CIS] has first adjudicated
the petition on its merits," and "if a waiver request petition
follows the denial of a joint filed petition" then "the [CIS] will
evaluate the new petition separately from the previous denial."
Memorandum from Donald Neufeld, the Acting Associate Director,
Domestic Operations Directorate, of the CIS, to Field Leaders in
the CIS on the Proper Ways to Adjudicate I-751 Applications and I-
751 Waiver Petitions (Oct. 9, 2009)(on file with the CIS).
Duque claims the agency erred when it incorporated by
reference the reasoning used to deny his original I-751 petition in
its denial of Duque's I-751 waiver petition. He asserts that this
action violated his due process rights because it deprived him of
his right to an adjudication on the merits -- including an
interview -- of his I-751 waiver petition by the CIS, prior to a
ruling from an IJ. Such a violation, according to Duque, requires
us to vacate the BIA's decision and remand the case back to the CIS
even if, in his own words, his "chances of obtaining a waiver are
slim."
Yet, "before a petitioner in an immigration case may
advance a procedural due process claim, he must allege some
cognizable prejudice fairly attributable to the challenged
process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004)
(citing Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir.
2002)); Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999)).
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"Prejudice is an amorphous concept, and necessarily so, given the
wide variety of facts that may arise." Kheireddine v. Gonzales,
427 F.3d 80, 85 (1st Cir. 2005). On this record, Duque's hearing
before the IJ cured any potential prejudice Duque might have faced
due to the alleged procedural transgression.
Even assuming that the failure to hold a second interview
during the adjudication of Duque's I-751 waiver petition as
suggested by an internal INS memo4 could abridge a petitioner's due
process rights -- a rather dubious proposition -- Duque has failed
to show any cognizable prejudice. In his brief, Duque "does not
assert that, if given the procedural safeguards he seeks, the
result in this case would be any different." Ojeda-Terrazas, 290
F.3d at 302 (refusing to reach the merits of petitioner's due
process claim where the petitioner failed to assert that the
outcome of the case would have been different had proper procedure
been followed). Indeed, given the utter lack of reliable evidence
to support his case, it is unlikely the result would differ.
4
We note that the memo "is intended solely for the training and
guidance of [CIS] personnel in performing their duties relative to
the adjudication of applications. It is not intended to, does not,
and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law or by any individual
or other party in removal proceedings, in litigation with the
United States, or in any other form or manner." Memorandum from
Donald Neufeld, the Acting Associate Director, Domestic Operations
Directorate, of the CIS, to Field Leaders in the CIS on the Proper
Ways to Adjudicate I-751 Applications and I-751 Waiver Petitions
(Oct. 9, 2009)(on file with the CIS).
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Instead of arguing he might have otherwise fared better,
Duque contends that it was a violation of his due process rights
for the CIS to fail to provide him with an interview in connection
to his I-751 waiver petition. He also protests he was not provided
a point by point explanation as to why the evidence submitted in
connection with that petition was insufficient to overcome the
CIS's findings in its initial joint I-751 decision that Duque had
provided false statements and information.
The record, however, reveals otherwise. At the removal
hearing, Duque was offered the opportunity to renew his request for
a waiver as well as fully present his case by submitting
documentary evidence in support of his request5 -- a right Duque
had, but failed to exercise. See In re Herrera Del Orden, 25 I. &
N. Dec. 589, 595 (BIA 2011) (stating that under 8 C.F.R. §
1216.5(f), when an alien seeks review in removal proceedings of a
CIS decision denying his waiver application, the alien may renew
his application before the IJ and present new evidence in support
of his request, to satisfy his burden to establish eligibility for
relief from removal). Thus, the IJ did adjudicate Duque's petition
on the merits, with the record that stood before it.
Further, the BIA found that the IJ fully addressed
Duque's waiver request by carefully considering Duque's evidence
5
Duque acknowledges that he was required to submit documentary
evidence of a shared life with Gladys to the IJ -- a task he failed
to complete. Additionally, Duque was unable to recall what
evidence he submitted as part of his I-751 waiver petition.
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and testimony in making its decision, and it did not base the
decision solely on the prior denial of the joint I-751 petition.
That the record was barren of any credible evidence in Duque's
favor is a defect entirely of his own making. Thus, Duque is
unable to sufficiently allege a cognizable prejudice, and as a
result, he is unable to sustain a procedural due process claim.
See Lattab, 384 F.3d at 20.
III. Conclusion
All of Duque's arguments fail to carry the day. In sum,
because Duque failed to challenge the IJ's findings below, and
failed to sufficiently allege a cognizable prejudice to his due
process rights, we agree with the BIA's denial of his petition.
Accordingly, Duque's petition for review is denied.
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