United States Court of Appeals
For the First Circuit
No. 05-1172
CLAUDIO RODRIGUEZ DEL CARMEN,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Raymond Sanchez Maceira on brief for petitioner.
Thankful T. Vanderstar, Trial Attorney, Peter D. Keisler,
Assistant Attorney General, and Christopher C. Fuller, Senior
Litigation Counsel, on brief for respondent.
March 23, 2006
CYR, Senior Circuit Judge. In 1994, petitioner Claudio
Rodriguez Del Carmen, a native and citizen of the Dominican
Republic, married Awilda Sepulveda Benitez, a United States
citizen. In 1996, he was admitted for permanent residence on a
conditional basis. See 8 U.S.C. § 1186a. In 1997, Rodriguez and
Sepulveda jointly submitted a petition to remove Rodriguez's
conditional status. In 1999, they were divorced. The following
year, the conditional status was removed, and Rodriguez was granted
lawful permanent resident status.
In 2001, two Immigration and Naturalization Service (INS)
agents interviewed Sepulveda, who stated under oath, on audiotape,
that Rodriguez had paid her $1500 to marry him and that they
neither lived together nor had marital relations. On the day that
Sepulveda had filed her affidavit in support of Rodriguez’ petition
to become a lawful permanent resident, she and Rodriguez jointly
opened a bank account with a $1500 balance. During the 2001
interview, Sepulveda executed an acknowledgment and waiver of
rights, and repeatedly stated that the INS agents had made no
promises or threats to procure her statement.
The Department of Homeland Security (“the Department”)
commenced proceedings to deport Rodriguez, see id. § 1227(a)(1)(A),
alleging inter alia that he had procured permanent resident status
by entering into a fraudulent marriage. See id. §
1182(a)(6)(C)(i). At the deportation hearing, the Department
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introduced Sepulveda’s sworn statement in evidence. However,
Sepulveda testified that her sworn statement was false, that she
suffered from “psychological problems,” and that the INS agents had
coerced her into making the sworn statements by threatening to take
her children away from her unless she incriminated Rodriguez.
Although Sepulveda now contends that her marriage with Rodriguez
had been bona fide, she was unable to testify to important details
regarding their marital arrangement, such as the address of their
joint habitation and the names of Rodriguez' parents. Sepulveda
conceded that, after their marriage, Rodriguez had left her and
relocated to the Dominican Republic for about three years. The
interviewing INS agent testified in rebuttal that he never made any
threats regarding the Sepulveda children, and that Sepulveda
repeatedly acknowledged throughout her 2001 interview that her
statements were voluntary.
In due course, the immigration judge (“IJ”) ruled that
Rodriguez had entered into a fraudulent marriage, thereby rendering
him ineligible for permanent resident status. On appeal, the Board
of Immigration Appeals adopted and affirmed the IJ’s decision.
Rodriguez petitions for review.
Rodriguez contends that the IJ erred, in that the
rejection of the Sepulveda in-court recantation cannot suffice,
standing alone, to establish that the marriage was fraudulent, and
also because the record contained other undisputed evidence (e.g.,
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love letters) demonstrating that the marriage was valid.
We review the IJ’s finding – that the Rodriguez marriage
to Sepulveda was fraudulent – in order to determine whether it is
supported by “substantial evidence,” and we will uphold it unless
the record would compel a contrary finding. See Ang v. Gonzales,
430 F.3d 50, 54-55 (1st Cir. 2005). Matters of witness credibility
and demeanor are peculiarly for the factfinder. See Laurent v.
Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004) (“Where . . . the
judicial officer who saw and heard the witness makes an adverse
credibility determination and supports that determination with
specific findings, an appellate court should treat that
determination with great respect.”).
Rodriguez first contends that the IJ's decision is
improperly based solely on the fact that Sepulveda recanted her
sworn statement. We disagree. Substantial evidence supports the
IJ’s findings. First, the IJ properly could assign some weight to
the plausibility, vel non, of the Sepulveda in-court testimony as
evidence of her fraudulent intent. See United States v. Lopez, 944
F.2d 33, 40 (1st Cir. 1991) (noting that assessment of an in-court
recantation is the province of the factfinder). Furthermore, the
IJ expressly determined that the 2001 statement made by Sepulveda
– that Rodriguez paid her $1500 to marry him and that they never
cohabitated or had marital relations – was not coerced, hence
constituted a credible account of her marriage to Rodriguez. This
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credibility finding is supported by substantial record evidence.
The INS agents had verbally informed Sepulveda of her rights prior
to the 2001 interview, after which she signed a written waiver of
those rights. One of the interviewing agents testified that he had
not coerced Sepulveda, and that Sepulveda had acknowledged during
the interview that the INS agents had not made any promises or
threats. Sepulveda admits to volunteering the $1500 payoff figure
(viz., the precise amount on deposit in the joint bank account she
opened with Rodriguez on the very day she filed her affidavit in
support of his petition to become a permanent lawful resident).
See Cho v. Gonzales, 404 F.3d 96, 103 (1st Cir. 2005) (noting that
receipt of payment may serve as evidence that marriage was
fraudulent). Her self-incriminating statements that she had
entered into a fraudulent marriage were obviously against her penal
interests.
At the hearing before the IJ, Sepulveda also was unable
to recall important details of her putative married life, such as
the address of her joint habitation with Rodriguez, the names of
Rodriguez' parents, or how long she had dated Rodriquez before they
married, see Syed v. Ashcroft, 389 F.3d 248, 252 (1st Cir. 2004)
(noting that witness’s vagueness and contradiction in details may
evidence that marriage was fraudulent), which tends to corroborate
her sworn 2001 statement that she never lived with nor had marital
relations with Rodriguez. Given the sketchiness of Sepulveda’s
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memory, the IJ also was not compelled to credit the testimony of
her mother, who purported to supply details concerning the bona
fides of the marital arrangement, but whose bias toward her
daughter gave the IJ a reasonable basis for questioning the
veracity of her account. Further, even if the IJ fully credited
the mother’s testimony that INS agents repeatedly had started and
stopped the tape recorder during her daughter’s interview, the IJ
was not compelled to accept the mother’s additional inference that
the INS agents must have “selectively” recorded the interview to
leave out evidence of their coercive tactics.1 For all these
reasons, we conclude find that the IJ’s finding that the marriage
was fraudulent is supported by substantial evidence and must be
affirmed.
Finally, Rodriguez argues that the IJ improperly
discounted other evidence which conclusively demonstrated the bona
fides of the putative marriage, such as his love letters to
Sepulveda, life insurance policies naming her as his beneficiary,
and their joint tax returns. The IJ was not compelled to credit
this evidence, however, especially in the face of the above-
described evidence suggesting that the marriage was fraudulent.
The IJ reasonably could conclude that the documentary evidence,
1
Sepulveda’s mother could not testify that the INS agents had
made any promises or threats during the 2001 interview; she
conceded that she had spent the entire interview in her bedroom
watching television and did not hear any of it.
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such as the love letters, insurance policy and tax returns,
constitutes deliberate contrivances to conceal the fraudulent
nature of the Rodriguez marriage for the exclusive purpose of
evading the immigration laws.
Accordingly, as we cannot conclude that the record
evidence compels a finding that the Rodriguez “marriage” to
Sepulveda was bona fide, the BIA decision must be affirmed.
Affirmed.
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