Vera Putro v. Loretta E. Lynch , 828 F.3d 578 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2430
VERA PUTRO,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A099-280-517
____________________
ARGUED APRIL 27, 2016 — DECIDED JULY 7, 2016
____________________
Before FLAUM, MANION, AND WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This case involves the applica-
tion of an exemption in the immigration laws for an alien
seeking to obtain unconditional lawful permanent resident
status as a result of her marriage to a U.S. citizen. Vera Pu-
tro, a citizen of Latvia, married a U.S. citizen in 2004 and
based on that marriage gained conditional permanent resi-
dency. Her residency did not become unconditional, howev-
2 No. 14-2430
er, because her husband passed away before they could peti-
tion jointly to remove the conditions. Putro petitioned on her
own to have the conditions removed. U.S. Citizenship and
Immigration Services construed the petition as a request for
a discretionary waiver of the joint-petition requirement, de-
nied the waiver, and ordered Putro removed. But in fact Pu-
tro did not need a waiver because her husband’s death dur-
ing the conditional period exempted her from the joint-filing
requirement. In mistakenly evaluating her petition as a re-
quest for a waiver, the agency erroneously placed on Putro
the burden of proving that the marriage was bona fide. So
we grant the petition.
Putro first entered the U.S. on a 4-month, foreign-
exchange student visa in 1999 and overstayed. In November
2004 she married Michael Zalesky, a U.S. citizen. Putro was
granted conditional legal permanent residence (“LPR”) sta-
tus as the spouse of a U.S. citizen in July 2006, see 8 U.S.C.
§ 1186a(1); 8 C.F.R. § 216.1.
Four months later, in November, Zalesky died.
Zalesky’s untimely death complicated Putro’s immigra-
tion status. To gain unconditional LPR status, Putro and
Zalesky had to jointly petition the agency for removal of the
conditions within the 90-day period before the second anni-
versary of her obtaining conditional permanent residency
(i.e., between mid-April and mid-July of 2008). See 8 U.S.C.
§ 1186(c)(1)(A), (d)(2); 8 C.F.R. § 216.4(a)(1). Of course filing
a joint petition was no longer possible, so in June 2008 Putro
filed a Form I-751 Petition to Remove Conditions on Resi-
dence, checking the box specifying that she sought a waiver
of the joint-filing requirement because her spouse had died.
No. 14-2430 3
The agency denied Putro’s petition, stating that it had
“reason to believe” that she had committed marriage fraud
by marrying Zalesky. The agency construed Putro’s petition
as a request for a waiver of the joint-filing requirement
available to noncitizens whose marriages terminate in di-
vorce or annulment. This waiver, according to the relevant
federal statute, is available to a noncitizen if she can demon-
strate that she entered marriage in good faith but that the
marriage was “terminated (other than through the death of
the spouse).” See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R.
§ 216.5(a)(1)(ii). In denying Putro’s petition, the agency con-
cluded that she failed to refute evidence in her file reflecting
that her marriage to Zalesky was a sham—primarily a report
that law enforcement prepared after investigating Zalesky’s
death. The agency terminated Putro’s status as a conditional
permanent resident and issued a Notice to Appear charging
her with removability, see 8 U.S.C. § 1227(a)(1)(D)(i).
During removal proceedings an immigration judge ad-
vised Putro that she had the right to renew her request for
the waiver before the court. He allowed her to present evi-
dence and reminded her that she had the burden of proving
that the marriage was bona fide.
Putro and several witnesses testified in support of her pe-
tition. Putro testified that she met Zalesky in January of 2004
and married him in November 2004. Putro said that their
first year of marriage had gone well, but that Zalesky’s drug
problems soured their relationship. Zalesky began lying to
her and sometimes stayed away from their home for days at
a time. In the summer of 2006, around the time her condi-
tional status finally came through, they separated. In No-
vember 2006 Zalesky died of a drug overdose in his parents’
4 No. 14-2430
basement. Putro’s mother, sister, and several friends all testi-
fied to visiting the couple in their home or meeting them at
social events.
The government called two investigative agents and
Zalesky’s parents to testify. According to the agents, during
the investigation following Zalesky’s death they had been
told by Zalesky’s family and Zalesky’s friend Jeffrey Arm-
strong that Zalesky had been in an arranged marriage with a
Russian woman and that he was paid to marry her in ex-
change for citizenship. Putro’s counsel repeatedly raised
hearsay objections to the agents’ testimony regarding Arm-
strong’s statements (Armstrong never testified because Pu-
tro’s counsel was unable to serve him, despite the IJ having
prepared a subpoena for his appearance). Zalesky’s parents
did testify, but both swore that they had no knowledge of
their son being in an arranged marriage and no memory of
telling either investigator that their son was in an arranged
marriage.
The IJ denied Putro’s application for the waiver of the
joint-filing requirement and concluded that she was remov-
able. The IJ found that Putro had failed to establish by a pre-
ponderance of the evidence that she and Zalesky had a bona
fide marriage. Her testimony and that of her witnesses, he
said, was “unpersuasive.” The government, in contrast, had
presented “reliable” evidence that family members and
Armstrong had told investigators that the marriage was a
fraud.
Putro appealed to the Board of Immigration Appeals, but
it upheld the IJ’s ruling and dismissed her appeal. “[E]ven
assuming the credibility of the respondent and all testifying
witnesses,” the Board explained, she did not meet her bur-
No. 14-2430 5
den of proving that she entered her marriage in good faith.
The Board agreed with the IJ that the testimony of Putro and
her witnesses was vague, that it did not sufficiently reflect a
shared life, and that Putro did not adequately rebut the gov-
ernment’s evidence that the marriage was a sham. Acknowl-
edging that Zalesky’s parents had recanted their statements
to investigators, the Board nevertheless found that the IJ
properly relied on the investigators’ testimony and reports.
The Board also rejected Putro’s due-process challenge to the
handling of Armstrong’s evidence: even though Armstrong
did not appear in court for cross-examination, Putro was
able to cross-examine both agents about their conversations
with Armstrong as well as Zalesky’s parents about their
statements to authorities that the marriage was arranged.
On petition for review, Putro argued that the IJ had mis-
applied the standard of proof, and at oral argument we or-
dered the parties to submit supplemental briefing on how
this case is affected by the decision in Matter of Rose, and par-
ticularly the portion of the decision in which the Board
states:
[T]he death of a petitioning spouse during the
2-year conditional period excuses the general
requirement that a petition to remove the con-
ditional basis of an alien spouse’s status must
be “joint.” Thus, a separate waiver under sec-
tion 216(c)(4) of the Act is not required if the
surviving spouse timely files an I-751 petition
requesting removal of the conditional basis of
his or her status and appears for a personal in-
terview.
25 I. & N. Dec. 181, 182 (BIA 2010).
6 No. 14-2430
In her submission counsel for the Attorney General did
not address the applicability of Matter of Rose and instead
moved to remand the proceedings to the Board so that it
may consider this issue in the first instance. But we see no
reason to delay determination of the legal issue at the heart
of this case, so we deny that motion. See Marin-Rodriguez v.
Holder, 612 F.3d 591, 596 (7th Cir. 2010).
We agree with Putro that the IJ mishandled her petition
to remove conditions on her status by construing it as a re-
quest for a waiver of the joint-filing requirement rather than
recognizing that she qualified for an exemption of that re-
quirement. Because Zalesky died within the two-year condi-
tional period and Putro timely petitioned to remove her
conditional status, she should have been excused from the
joint-filing requirement. Matter of Rose, 25 I. & N. Dec. at 182.
This conclusion was applied in the only federal appellate de-
cision (an unpublished one) to address the issue. See Zerrouk
v. U.S. Att’y. Gen., 553 F. App’x. 957, 959 (11th Cir. 2014)
(recognizing exemption of “joint” filing requirement for al-
ien whose spouse dies within two-year conditional period,
but concluding that substantial evidence supported deter-
mination that marriage was not bona fide). Moreover, the
discretionary waiver does not even apply to Putro, because
that waiver requires that the marriage be “terminated (other
than through the death of the spouse).” 8 U.S.C.
§ 1186(c)(4)(B). That requires divorce or annulment,
see Memorandum from Donald Neufeld, Acting Assoc. Di-
rector, USCIS, to Directors, I-751 Filed Prior to Termination
of Marriage (Apr. 3, 2009). Though Putro separated from her
husband before his death, they never divorced, and the mar-
riage was terminated by his death.
No. 14-2430 7
The error was significant because it had the effect of
shifting the burden of proof that Putro’s marriage to Zalesky
was bona fide. Because the IJ thought that Putro needed a
waiver, he placed the burden of proof on her and ultimately
found that she failed to establish by a preponderance of the
evidence that she had a bona fide marriage. Had the burden
of proof properly been applied, the government would have
had to demonstrate by a preponderance of the evidence that
the marriage was not bona fide. See Matter of Rose, 25 I. & N.
Dec. at 185; 8 U.S.C. § 1186a(c)(3)(D); cf. Lara v. Lynch,
789 F.3d 800, 804 (7th Cir. 2015) (noncitizen applying for dis-
cretionary waiver of joint filing petition bears burden of
proving that marriage at time of inception was bona fide).
Moreover, unlike a grant of the waiver—which is discretion-
ary—the agency “shall” remove the conditional basis of the
petitioner’s status as long as he or she meets the petitioning
requirements and the government cannot disprove that the
marriage is bona fide. See 8 U.S.C. § 1186(a)(3)(B). This case
must be remanded to the agency so that the IJ can evaluate
her petition under the proper standard of proof. See Matter of
Rose, 25 I. & N. Dec., at 184–85.
Accordingly, we GRANT the petition and REMAND the
case for determination under the proper standard.