Cabrera v. Lynch , 805 F.3d 391 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1690
JULIA MERCEDES CABRERA,
Petitioner,
v.
LORETTA E. LYNCH,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Livia Lungulescu and Romanovsky Law Offices on brief for
petitioner.
Benjamin C. Mizer, Acting Assistant Attorney General, Civil
Division, United States Department of Justice, Ernesto H. Molina,
Jr., Assistant Director, Office of Immigration Litigation, and
Joanna L. Watson, Trial Attorney, Office of Immigration
Litigation, on brief for respondent.
November 9, 2015
_____________
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
SELYA, Circuit Judge. The petitioner, Julia Mercedes
Cabrera, is a native and citizen of the Dominican Republic. She
seeks judicial review of a final order of the Board of Immigration
Appeals (BIA) upholding a decision of an immigration judge (IJ),
which denied her both an I-751 waiver and cancellation of removal.
After careful consideration, we deny her petition.
I. BACKGROUND
We briefly rehearse the facts and travel of the case.
The petitioner entered the United States in January of 1991 and
married a U.S. citizen later that same year. Through that
marriage, she was able to acquire status as a conditional lawful
permanent resident on June 25, 1993. See 8 U.S.C. § 1186a(a)(1),
(h)(1). The petitioner and her spouse subsequently filed an I-
751 joint petition (the joint petition) seeking to remove the
conditional nature of the petitioner's residency status. See id.
§ 1186a(c)(1).
Following an interview in early 1996, the Immigration
and Naturalization Service notified the petitioner of its intent
to deny the joint petition based on a finding of marriage fraud.
The joint petition was formally denied on August 8, 1997, resulting
in the termination of the petitioner's status as a conditional
lawful permanent resident. The petitioner never sought review of
this adverse determination. Shortly thereafter, the petitioner
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and her spouse became embroiled in divorce proceedings and a final
divorce decree was entered on June 18, 1999.
In October of 2000, federal authorities placed the
petitioner in removal proceedings. The next year (while still in
removal proceedings), the petitioner filed another I-751 petition.
This petition (the waiver petition) sought a waiver of the joint
petition requirements, maintaining that the petitioner had entered
into her marriage in good faith. See id. § 1186a(c)(4).
The waiver petition proved unavailing: United States
Citizenship and Immigration Services (USCIS) denied it on October
5, 2006. In doing so, USCIS did not consider the merits of the
waiver petition but, rather, relied on the previous finding of
marriage fraud. USCIS explained that the marriage fraud finding
rendered the petitioner ineligible to seek a waiver of the joint
filing requirement.
The removal proceedings were resumed and, in April of
2012, the petitioner appeared for a merits hearing. The IJ asked
the petitioner whether she was seeking review of the denial of her
joint petition or the denial of her waiver petition. The
petitioner confirmed that she was seeking review only of the denial
of the waiver petition.
At the end of the hearing, the IJ upheld the denial of
the waiver petition. She found that the petitioner had not carried
her burden of proving that she had entered into her marriage in
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good faith. Relatedly, the IJ found that the petitioner was
ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)
and, thus, pretermitted her application.
The petitioner timely appealed to the BIA, which
affirmed the IJ's decision and dismissed the appeal. This timely
petition for judicial review followed.
II. ANALYSIS
Our analysis necessarily begins with the standard of
review. In immigration cases, judicial oversight ordinarily
focuses on the final order of the BIA. See Moreno v. Holder, 749
F.3d 40, 43 (1st Cir. 2014). "But where, as here, the BIA accepts
the IJ's findings and reasoning yet adds its own gloss, we review
the two decisions as a unit." Id. (quoting Xian Tong Dong v.
Holder, 696 F.3d 121, 123 (1st Cir. 2012)). Claims of legal error
engender de novo review, with some deference to the agency's
expertise in interpreting both the statutes that govern its
operations and its own implementing regulations. See Jianli Chen
v. Holder, 703 F.3d 17, 21 (1st Cir. 2012); see also Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-
44 (1984).
We turn next to the relevant legal framework under the
Immigration and Nationality Act (the Act). Under the Act, an alien
married to a U.S. citizen for less than 2 years may seek status as
a conditional lawful permanent resident. See 8 U.S.C.
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§ 1186a(a)(1), (h)(1). If conditional residency status is granted,
the alien must apply for removal of her conditional status within
the 90-day window preceding the second anniversary of the date on
which that status was acquired. See id. § 1186a(c)(1), (d)(2)(A);
see also Reynoso v. Holder, 711 F.3d 199, 202 n.4 (1st Cir. 2013).
The application process for the removal of conditional
status entails two steps: first, the alien and the citizen spouse
must jointly submit a Form I-751 petition attesting to the validity
and bona fides of the marriage; second, both spouses must appear
for an interview conducted by a Department of Homeland Security
(DHS) representative. See 8 U.S.C. § 1186a(c)(1), (d)(3). If the
joint petition is unsuccessful, then the alien's status as a
conditional lawful permanent resident terminates, and DHS will
proceed to initiate removal proceedings. See 8 U.S.C.
§ 1186a(c)(3)(C); 8 C.F.R. § 216.4(d)(2); see also Reynoso, 711
F.3d at 202 n.4.
An alien whose joint petition is denied may seek review
of the adverse determination in her subsequent removal
proceedings. See 8 C.F.R. § 216.4(d)(2). In that event, the
government has the burden of proving by a preponderance of the
evidence that the material facts alleged in the joint petition are
false. See id.
There is another path that may be open to an alien who
cannot satisfy the requirements for the granting of an I-751 joint
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petition. Such an alien may file a petition for a waiver of the
joint filing requirements. See 8 U.S.C. § 1186a(c)(4); 8 C.F.R.
§ 1216.5(a)(1). The alien may qualify for this sort of
discretionary waiver by demonstrating, among other things, that
she entered into the qualifying marriage "in good faith"; that
"the qualifying marriage has been terminated (other than through
the death of the spouse)"; and that she "was not at fault in
failing to meet the requirements [for a joint petition]." 8 U.S.C.
§ 1186a(c)(4)(B). Under this framework, the burden of proof rests
with the alien to show that she entered into the qualifying
marriage in good faith. See id. § 1186a(c)(4); McKenzie-Francisco
v. Holder, 662 F.3d 584, 586-87 (1st Cir. 2011). An alien whose
waiver petition is denied may seek review of that decision in her
removal proceedings. See 8 C.F.R. § 1216.5(f).
Against this backdrop, we examine the petitioner's twin
claims of error. First, she asserts that the IJ erroneously
reviewed the waiver petition instead of the joint petition, leading
to an improper shift in the burden of proof. Second, she asserts
that the BIA blundered in determining that she was statutorily
ineligible for cancellation of removal. We address these claims
of error sequentially.
A.
The petitioner's first contention need not detain us.
At the removal hearing, the IJ made a specific point of clarifying
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which petition was at issue. The petitioner, through her attorney,
assured the IJ in no uncertain terms that she was seeking review
only of the waiver petition, not of the joint petition.
That ends this aspect of the matter. It is axiomatic
that a litigant is bound by her strategic choices during the course
of a legal proceeding. See Genereux v. Raytheon Co., 754 F.3d 51,
59 (1st Cir. 2014). If a particular strategy later proves
unavailing, the litigant cannot forsake her earlier tactical
decision at will and "attempt to change horses midstream in hopes
of finding a swifter steed." Id. This construct has particular
force where, as here, a litigant or her attorney makes an express
representation to both the trial judge and the opposing party.
See id. at 58-59.
This case aptly illustrates the point. Through her
counsel, the petitioner explicitly and emphatically informed the
IJ of her decision to seek review only of the waiver petition.
Both judges and opposing parties must be able to rely on such
representations, and nothing in this record suggests any valid
reason why the petitioner should not be firmly bound by her own
strategic choice.1
1Because the IJ did not err in reviewing only the denial of
the waiver petition, there was no error in her assigning the burden
of proof to the petitioner. When an alien seeks judicial review
of a waiver petition, the alien must carry the devoir of persuasion
and show that she entered into her marriage in good faith. See
McKenzie-Francisco, 662 F.3d at 586-87.
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B.
This brings us to the petitioner's contention that the
BIA erred in determining that she was ineligible to apply for
cancellation of removal under section 1229b(a). With respect to
this contention, the petitioner urges us to review the decision of
the IJ directly because the BIA failed to offer any independent
reasoning for its views on this point.
This exhortation lacks force. We treat the conclusions
of an IJ as those of the BIA only when the BIA affirms the IJ
without opinion. See, e.g., Keo v. Ashcroft, 341 F.3d 57, 59-60
(1st Cir. 2003); Herbert v. Ashcroft, 325 F.3d 68, 70-71 (1st Cir.
2003). This is not such a case: here, the BIA added its own gloss
to the IJ's findings and reasoning. Thus, we train the lens of
our inquiry on the combination of the BIA's decision and the IJ's
decision. See Moreno, 749 F.3d at 43; Xian Tong Dong, 696 F.3d at
123.
An alien who holds lawful permanent resident status may
obtain cancellation of removal only if she: (i) "has been
. . . lawfully admitted for permanent residence" for at least five
years; (ii) "has resided in the United States continuously for
seven years" after her admission in any status; and (iii) "has not
been convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(1)-
(3). Even if an alien satisfies these three prerequisites, the
Attorney General's decision to grant such relief is discretionary
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and "amounts to 'an act of grace.'" Sad v. INS, 246 F.3d 811, 819
(6th Cir. 2001) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30
(1996)).
In the case at hand, the petitioner falls well short of
the required showing. She was, at most, a conditional lawful
permanent resident from June 1993 through August 1997 — a period
of less than five years. This failure to satisfy the five-year
prerequisite is, in itself, enough to find her ineligible for
cancellation of removal under section 1229b(a).
In all events, the petitioner lost even this conditional
status when USCIS formally denied the joint petition. See 8 U.S.C.
§ 1186a(c)(3)(C); 8 C.F.R. § 216.4(d)(2). Nor did the filing of
the waiver petition serve to restore her residency status. See
Severino v. Mukasey, 549 F.3d 79, 83 (2d Cir. 2008). Because the
petitioner had no status as a permanent resident, conditional or
otherwise, when she filed the waiver petition, the BIA correctly
determined that she was categorically ineligible to apply for
cancellation of removal under 8 U.S.C. § 1229b(a). See id. at 82-
83 (affirming alien's ineligibility for cancellation of removal
under 8 U.S.C. § 1229b(a) because his conditional lawful permanent
residency status had been terminated); see also Padilla-Romero v.
Holder, 611 F.3d 1011, 1013 (9th Cir. 2010) ("[T]he text requires
that an alien applying for cancellation of removal under § 1229b(a)
have current [lawful permanent residence] status.").
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In an effort to undermine this reasoning, the petitioner
picks out scraps of language from a trio of reported cases. This
scavenger hunt proves unproductive.
To begin, the petitioner cites In re Ayala-Arevalo, 22
I&N Dec. 398 (BIA 1998), for the proposition that an alien "who
does not yet have a final order of deportation, still enjoys the
status of an alien who has been 'lawfully admitted for permanent
residence.'" Id. at 402. The petitioner's reliance on Ayala-
Arevalo is misplaced. Wresting the quoted language from its
contextual moorings and giving it sweeping effect — as the
petitioner suggests — would ignore entire sections of the Act and
a host of implementing regulations that specify the precise
circumstances in which an alien's status as a conditional lawful
permanent resident terminates. See, e.g., 8 U.S.C.
§ 1186a(c)(3)(C); 8 C.F.R. §§ 216.4(d)(2), 216.5(f). We cannot —
and will not — dispense in so cavalier a manner with the combined
directives of Congress and DHS.
Ayala-Arevalo is inapposite for other reasons as well.
The alien there enjoyed status as a lawful permanent resident, not
as a conditional lawful permanent resident. See Ayala-Arevalo, 22
I&N Dec. at 399. While the petitioner argues that conditional
permanent residency is equivalent in all respects to permanent
residency, that argument is specious. When Congress wanted to
equate the two residency statuses, it knew exactly how to write
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such an equivalency into the Act. See, e.g., 8 U.S.C. § 1186a(e)
(providing that, for purposes of naturalization, the period of
conditional lawful permanent residence should be treated as part
of the period of "lawful permanent residence"). Otherwise,
Congress has refrained from conflating conditional permanent
residency with ordinary permanent residency.
The petitioner's embrace of the BIA's decision in Matter
of Paek, 26 I&N Dec. 403 (BIA 2014), does nothing to advance her
cause. That decision merely notes that (except to the extent the
Act says otherwise) conditional lawful permanent residents have
the same privileges as lawful permanent residents, "such status
not having changed." Id. at 407. Here, however, the petitioner's
status underwent a material change: her conditional residency was
terminated in 1997.
So, too, the petitioner finds no succor in Gallimore v.
Attorney General of the United States, 619 F.3d 216 (3d Cir. 2010).
The petitioner quotes the Gallimore court's pronouncement that
"[t]he [Act] . . . equates conditional [lawful permanent residents]
with 'full-fledged' [lawful permanent residents]." Id. at 229.
But the court hastened to except those situations in which "§ 1186a
[of the Act] prescribes additional obligations." Id. In this
instance, section 1186a pertains; and the petitioner cannot
satisfy the additional obligations of section 1186a because her
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application for removal of her conditional status was denied. See
8 U.S.C. § 1186a(c)(3)(C).
To say more would be pointless. We hold, without serious
question, that the BIA did not err in declaring the petitioner
categorically ineligible for cancellation of removal under 8
U.S.C. § 1229b(a).2
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
2
An alien may, of course, apply for cancellation of removal
as a non-permanent resident under 8 U.S.C. § 1229b(b). See, e.g.,
Reynoso, 711 F.3d at 202-03, 209. The petitioner originally asked
for this relief in the alternative, but the IJ later deemed that
request abandoned. Since the petitioner did not appeal that ruling
to the BIA, we lack jurisdiction to pursue the matter. See Molina
De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007).
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