United States Court of Appeals
For the First Circuit
No. 99-1822
ARTURO RODRIGUEZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Steve J. Gutherz for petitioner.
M. Jocelyn Lopez Wright, Attorney, Office of Immigration
Litigation, Civil Division, with whom David W. Ogden, Acting
Assistant Attorney General, Civil Division, and David V. Bernal,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
February 22, 2000
COFFIN, Senior Circuit Judge. This is a petition for review
of a decision by the Board of Immigration Appeals that affirmed an
immigration judge’s order of deportation against petitioner while
granting his request for voluntary departure. Finding that the
evidence supports the Board’s determination, we affirm.
The Board rested its decision on the ground that petitioner
did not provide persuasive evidence to rebut the statutory
presumption of marriage fraud, applicable to an alien who
obtains any admission into the United States with an
immigrant visa . . . procured on the basis of a marriage
entered into less than 2 years prior to such admission .
. . and which, within 2 years subsequent to any admission
. . . shall be judicially annulled or terminated, unless
the alien establishes . . . that such marriage was not
contracted for the purpose of evading . . . the
immigration laws . . . .
8 U.S.C. § 1227 (a)(1)(G)(i). See Baliza v. INS, 709 F.2d 1231,
1233 (9th Cir. 1983) (petitioner must show "by a preponderance of
the evidence" that the marriage was not entered into to evade the
immigration laws).
In this case, petitioner’s marriage to a United States
citizen, Ms. Diaz, occurred on August 30, 1984, less than two years
before he entered the United States on August 11, 1985, which in
turn was less than two years before his marriage was terminated by
a judgment of annulment of the New York Supreme Court on December
19, 1986.
What is particularly significant is the specificity of the
New York decree. It provided that Ms. Diaz "shall have judgment
that the marriage of the parties is annulled on the evidence found
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in the Findings of Fact and Conclusions of Law . . . ." Among the
findings, which are part of the record here, are those stating that
petitioner, on or about August 25th, 1984, professed his love for
Ms. Diaz, saying that he "wanted to marry [her] . . . and raise a
family together"; that, relying on these promises, Ms. Diaz married
petitioner; that petitioner "came to the United States in August
1985 and never resided with [her] as husband and wife"; and that in
November 1985, at a friend’s house, petitioner stated that he
married only "to obtain his green card and now that he has it and
is in the United States he can tell [her] the truth." Petitioner
acknowledged receiving a summons and waived answer. He also waived
service of further papers, except for the judgment itself.1
In reviewing the action of the Board, we conduct very
restricted scrutiny to ascertain whether the decision is supported
by substantial evidence, or, to put it in more graphic terms,
whether petitioner’s evidence compels a contrary conclusion. See
Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999) (petitioner has "high
burden" of presenting evidence that is "`so compelling that no
reasonable fact finder could fail’ to find that he had a bona fide
marriage") (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992)). The substantive question is whether, at the time of the
1
The typewritten form for acknowledgment of service used the
word "divorce" in one paragraph. This was struck out and
"annulment" was written in. At two other places, blanks were
filled in by words, in smaller type, indicating that the action was
for annulment. Petitioner’s belated effort to question the
validity of the New York proceeding based on the type of action at
issue is unavailing. Whether petitioner understood the action to
have been one for annulment or divorce, it was one for termination
of the marriage.
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marriage, there was an "inten[t] to establish a life together."
See Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). To the
extent that evidence of post-marriage conduct bears on this issue,
it is relevant. See id. at 1202.
The factual background is not extensive. Petitioner’s
relationship with Ms. Diaz began with a long distance courtship,
initiated with a telephone conversation between the two in December
1983. Ms. Diaz called from New York, where she had a condominium,
lived with two teenage sons, and had a job as a social worker.
Petitioner received the call in the residence of a mutual friend in
the Dominican Republic. The two corresponded and Ms. Diaz sent a
photograph of herself. In August 1984, she came to the Dominican
Republic, met appellant in person, and traveled with him for three
weeks, at the end of which time they were married, on August 30,
1984. This was her third marriage and his second. She was 41 and
he, 40.
After several months, Ms. Diaz, not wanting to live in the
Dominican Republic, returned to the United States. Petitioner’s
testimony about this period is as follows:
Q. What happened after you got married?
A. After we got married we continued writing letters and
talking and sending each other presents. We continued
our communication as husband and wife.
Q. Why did Gladys have to go back to the United States
after you were married?
* * *
A. Because she did not accept to live in Santo Domingo.
Only for me to come live with her, not her to live over
there.
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For the next eight months, according to petitioner, they
exchanged letters and phone calls. Finally, petitioner received
permission to enter the United States. On August 11, 1985, he
arrived in New York, took up residence with Ms. Diaz, and found a
job. After three weeks, he was laid off. Unable to find another
job, he moved in December to Boston at the suggestion of a friend.
There he realized that the available jobs did not pay enough for
his wife to join him.
He never saw Ms. Diaz again. After four months he received a
post card sent by her from Puerto Rico. He had not known that she
had gone there. It was an undemonstrative statement of her
favorable impressions of Puerto Rico and its people, bereft of any
language of endearment or intimacy. Shortly thereafter, in July
1986, Ms. Diaz sent him papers related to termination of the
marriage, which he signed and returned. As we have noted, the
judgment of annulment issued on December 19, 1986. Almost four
more years were to elapse before petitioner came to the attention
of INS, when he tried to reenter the United States on September 6,
1990, from a trip abroad.
Petitioner accepts the heavy burden he must carry, but argues
that he has met it, citing correspondence and telephonic
communications, both before and after his marriage. He attributed
his moving to Boston to his desire to find a job to support himself
and his wife and to friction with Ms. Diaz's two sons, whom he
claimed were involved with guns and drugs. He also proffered a
number of affidavits from friends about the marriage. These were
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accepted by the judge, who said that he would weigh them in the
light of an absence of opportunity for cross examination. One
affidavit was from the mutual friend who had introduced the couple,
and it described their relationship from the time they first talked
by telephone through the later difficulties of unemployment and
arguments over the handling of Ms. Diaz’s children. The others
were from friends who provided similar details about his problems
with the teenagers and conclusory impressions of an otherwise happy
marriage.
This evidence loses considerable force when measured against
the near complete absence of any documentation of the parties'
relationship. There are no letters and no financial or other
records. There were only two photographs of the couple, taken in
the Dominican Republic. Although petitioner testified that he
communicated with his wife by phone and letters after his move to
Boston, there is no tangible evidence of any contact in the three
months following his departure. Then petitioner received the bland
postcard sent by his wife from Puerto Rico.
But petitioner’s most daunting obstacle is the New York
judgment of annulment. The judgment itself, terminating the
marriage relationship, was enough to invoke the statutory
presumption. But this was more than a simple ending of the
marriage; it was specifically based upon a finding of fraudulent
intent to evade the immigration laws. This was a judgment, the
validity of which is not contested, entitled to full faith and
credit, and immune from collateral attack. Cf. Gouveia v. INS, 980
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F.2d 814, 817 (lst Cir. 1992) (criminal convictions cannot be
collaterally attacked in immigration proceedings).
It created not just a presumption, but a presumption plus. We
need not go so far as to say that, under preclusion principles, it
is itself dispositive. We need say only that it is very powerful
evidence that the original intent was to use marriage as a device
to evade the immigration laws. Against this, we cannot say that
petitioner’s personal and largely unverified protestations of love
and the scant written documentation rise to anything approaching a
preponderance.
So holding, we, like the Board, do not give any weight to the
affidavits petitioner objects to on the ground that he was not
allowed the opportunity to cross examine the affiants.
The petition for review is denied and the Board’s decision is
AFFIRMED.
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