Antropova v. Holder , 553 F. App'x 49 ( 2014 )

12-2593 (L)
Antropova v. Holder
BIA
Straus, IJ
A079 680 867
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
30th day of January, two thousand fourteen.
Present:
AMALYA L. KEARSE,
ROSEMARY S. POOLER,
REENA RAGGI,
Circuit Judges.
_____________________________________
MARIA ALEKSANDROVNA ANTROPOVA,
Petitioner,
v. 12-2593 (L);
12-4455 (con)
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
Appearing for Petitioner: Thomas E. Moseley, Law Offices of Thomas E. Moseley, Newark,
N.J.
Appearing for Respondent: Gregory M. Kelch, Office of Immigration Litigation, United States
Department of Justice (Stuart F. Delery, Assistant Attorney
General; Song Park, Senior Litigation Counsel; Timothy G. Hayes,
Trial Attorney, on the brief), Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of decisions by the Board
of Immigration Appeals (the “BIA”), IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petitions for review are DISMISSED IN PART, FOR LACK OF
JURISDICTION, AND DENIED IN PART.
Petitioner Maria Aleksandrovna Antropova, a native of Russia, seeks review of a May
30, 2012 order of the BIA, affirming the July 6, 2010 decision of an Immigration Judge (“IJ”),
which found her removable and denied her a waiver under the Immigration and Nationality Act,
Section 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B). In re Maria Aleksandrovna Antropova, No.
A079 680 867 (B.I.A. May 30, 2012), aff’g No. A079 680 867 (Immig. Ct. Hartford, Conn. July
6, 2010). She also seeks review of the BIA’s October 19, 2012 decision denying her motion to
reopen. In re Maria Aleksandrovna Antropova, No. A079 680 867 (B.I.A. Oct. 19, 2012). We
assume the parties’ familiarity with the underlying facts and procedural history in this case. We
note that we received and considered Antropova’s January 23, 2014 letter filed pursuant to Rule
28(j) of the Federal Rules of Appellate Procedure.
I. The Denial of Antropova’s Application for a “Good Faith” Waiver
“Where, as here, the BIA adopts the immigration judge’s reasoning and offers additional
commentary, we review the decision of the immigration judge as supplemented by the BIA.”
Boluk v. Holder, 642 F.3d 297, 301 (2d Cir. 2011) (internal quotation marks and alterations
omitted). We have jurisdiction to review constitutional claims and “questions of law,” 8 U.S.C.
§ 1252(a)(2)(D), including Antropova’s contention that the IJ applied the wrong legal standard
with respect to her waiver application, see Boluk, 642 F.3d at 303.
Antropova contends that the IJ applied the incorrect legal standard by assessing whether
there was sufficient evidence that she and her ex-husband “had a shared life together,” rather
than whether there was sufficient evidence of their intent to establish a life together at the time of
the marriage. Her contention is without merit. At the beginning of the IJ’s decision he articulated
the correct legal standard, which is whether Antropova “entered into a qualifying marriage in
good faith.” In making that determination, the IJ was permitted to consider “the course of a
relationship after a wedding,” Boluk, 642 F.3d at 303, including the degree to which the spouses
combined their assets, documentation about the length of time they “cohabited after the marriage
and after the alien obtained permanent residence,” the existence of children, and other pertinent
evidence, 8 C.F.R. § 1216.5(e)(2). That is precisely the type of evidence that the IJ considered in
this case. Even assuming the IJ committed an error in articulating the legal standard, that error
did not infect the IJ’s fact finding and the BIA was correct to conclude that any such error was
“harmless.”
Antropova further argues that her testimony that she entered into her marriage in good
faith should have been taken as true by the IJ because the IJ did not make an adverse credibility
determination. To support that argument, Antropova relies on Lopez-Alvarado v. Ashcroft, 381
F.3d 847, 851 (9th Cir. 2004), and Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000), for the
proposition that “[a]bsent an explicit adverse credibility finding, a witness’s testimony must be
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accepted as true.” Lopez-Alvarado, 381 F.3d at 851 (citing Kataria, 232 F.3d at 1114). However,
“Congress abrogated” Kataria’s holding that “‘we must accept an applicant’s testimony as true
in the absence of an explicit adverse credibility finding.’” Aden v. Holder, 589 F.3d 1040, 1044
(9th Cir. 2009) (quoting Kataria, 232 F.3d at 1113). Antropova’s attorney failed to disclose to
the court that the legal principle in Lopez-Alvarado and Kataria on which he relied is no longer
good law. In addition, precedent from the Ninth Circuit does not bind our Court.
Antropova also contends that the agency’s decision is not supported by substantial
evidence. Because her challenge essentially relates to the credibility of the evidence and the
weight accorded to it, she fails to raise a reviewable claim. See Contreras-Salinas v. Holder, 585
F.3d 710, 714 (2d Cir. 2009); see also Boluk, 642 F.3d at 304 (explaining that the Court will “not
reevaluate the relative strength of the evidence presented to the immigration judge” (internal
quotation marks omitted)).
II. The BIA’s Denial of Antropova’s Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v.
BIA, 413 F.3d 232, 233 (2d Cir. 2005). We conclude that the BIA did not abuse its discretion in
this case.
Antropova’s contention that the BIA applied the wrong legal standard to her motion to
reopen is unavailing. It is well established that motions to reopen are appropriately denied if the
new evidence presented would not alter the result in the case. See Sanusi v. Gonzales, 445 F.3d
193, 201 (2d Cir. 2006); Kaur, 413 F.3d at 234.
Antropova’s argument that the BIA engaged in impermissible fact finding in denying her
motion is also misplaced. While the BIA generally may not engage in independent fact finding,
see 8 C.F.R. § 1003.1(d)(3)(iv), it may assess new or previously unavailable evidence when
considering a motion to reopen, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008);
Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).
We have considered the remainder of Antropova’s arguments and find them to be without
merit. For the foregoing reasons, the petitions for review are DISMISSED in part, for lack of
jurisdiction, and DENIED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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