Urena-Tavares v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-7-2004

Urena-Tavares v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1013

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 PRECEDENTIAL Peter D. Keisler
Assistant Attorney General
Civil Division
UNITED STATES COURT OF Jeffrey S. Bucholtz (Argued)
APPEALS FOR THE THIRD CIRCUIT Deputy Assistant Attorney General
Civil Division
David V. Bernal
No. 03-1013 Assistant Director
Office of Immigration Litigation
Russell J.E. Verby
DANIEL URENA-TAVAREZ, Trial Attorney
Office of Immigration Litigation
Petitioner U.S. Department of Justice
Washington, D.C. 20044
v.
Attorneys for Respondent
JOHN ASHCROFT, Attorney General
of the United States,
OPINION OF THE COURT
Respondent

SLOVITER, Circuit Judge.
Petition for Review of an Order In this Petition for Review from a
of the Board of Immigration Appeals final order of removal entered by the
(A44-445-342) Board of Immigration Appeals (BIA) the
Pe titione r, D a n i e l U r e n a -Tavare z
(Tavarez),1 argues that the decision of the
Argued January 15, 2004

Before: SLOVITER, RENDELL, and 1
Tavarez’s name is spelled
ALDISERT, Circuit Judges differently throughout the record and the
briefs. He is referred to as “Tavares” in
(Filed May 7, 2004) the caption on all documents in the
Administrative Record, A.R. at 2; as
“Tavarez” on the title page of the
Steven Vosbikian (Argued) Petitioner’s Brief but as “Tavares”
Vosbikian and Grady throughout, Pet’r Br. at 2; and as
Cherry Hill, NJ 08034 “Tavarez” in the Government’s Brief,
Gov’t Br. at 2. Because he signed and
Attorney for Petitioner printed his name as “Tavarez,” A.R. at
341, we will refer to him herein as
Immigration Judge (IJ) was not based on dating her for about six or seven months.
adequate findings of fact and that the BIA Marriage of an alien to a United States
did not properly evaluate the IJ’s findings citizen entitles an alien to obtain
against himself and his two minor conditional permanent resident status,
children. In considering the arguments, Immigration and Nationality Act (INA) §
we find ourselves faced with a more 216(a)(1), 8 U.S.C. § 1186a(a)(1), and
fundamental and more generally applicable Tavarez obtained such status on January 8,
question – one going to the statutory 1994 pursuant to an application filed by
limitation on our review of matters Pineiro.3
committed to the Attorney General’s
Under the INA, the conditions on
discretion.
such status can be removed if “the alien
I. spouse and the petitioning spouse (if not
deceased) jointly . . . submit to the
FACTS AND PROCEDURAL
Attorney General . . . a petition which
BACKGROUND
requests the removal of such conditional
Petitioner is a 61-year old native basis . . . .” INA § 216(c)(1)(A), 8 U.S.C.
and citizen of the Dominican Republic, § 1186a(c)(1)(A). 4 Pursuant thereto,
and his two children, Danny Zefar Tavarez and Pineiro filed a joint
Tavarez, age 15, and Daniela Zefar application on December 1, 1995 to have
Tavarez, age 14, are also natives and the conditions on Tavarez’s permanent
citizens of the Dominican Republic. It is residence status removed, and an
unclear from the record when and in what immigration officer from the then-
fashion Tavarez entered the United States, Immigration and Naturalization Service
but on September 3, 1992, he married (INS) scheduled the interview for
Eladia Pineiro,2 a citizen of the United
States, in Camden, New Jersey, after

“Tavarez.”
3
The Government concedes that
2
The Petitioner’s Reply Brief refers the initial application, which is not part
to her as “Eladia Lopez,” Pet. Reply Br. of the Administrative Record, was filed
at 6; the Government’s Brief refers to her by Pineiro. Gov’t Br. at 6.
as “Elidia Pineiro,” Gov’t Br. at 6; and
4
the Administrative Record refers to her INA statutes will be cited both to
both as Eladia Pineiro” and “Elidia their codifications in the INA and in Title
Pineiro,” A.R. at 336. Because her 8 of the United States Code the first time
signature appears to be “Eladia Pineiro,” they are referenced in this opinion.
A.R. at 337, we will refer to her as Subsequent citations will be to Title 8 of
“Eladia Pineiro” or as “Pineiro.” the United States Code.

2
November 19, 1998.5 Shortly before the anything.” A.R. at 134 (testimony of
interview with the immigration officer, witness Carmen Sanchez). In the car ride
Tavarez and Pineiro quarreled over which home, when Pineiro realized that Tavarez
of them was responsible for payment of would be deported, “she started crying and
Pineiro’s share of the income taxes. then hugged him and said, you know,
Tavarez left the room to use the men’s sorry, I didn’t mean to do that. That’s not
room. Pineiro was called into the what I wanted to do, I just wanted to be
interview alone and told the immigration out of the problem so I didn’t have to, you
officer that although she did not want to know, pay the taxes . . . .” A.R. at 135-136
harm Tavarez, “she didn’t live with (testimony of witness Carmen Sanchez).
[Tavarez] and she was a friend.” A.R. at The INS District Director denied
134 (testimony of witness Carmen Tavarez’s application to remove the
Sanchez). The immigration officer condition on his permanent resident status;
reassured her by stating that she was not thus his conditional status was deemed to
harming him. Pineiro then signed a sworn have expired on January 8, 1996.
statement before the immigration officer,
Thereafter, the INS began
apparently prepared by the officer, stating
proceedings to remove Tavarez and his
that she and Tavarez never lived together
children by filing a Notice to Appear,
as a married couple and that they did not
charging that his status as a conditional
consummate the marriage. She also stated,
permanent resident was terminated
“I felt pity on him so I married him. I only
pursuant to 8 U.S.C. § 1186a, and that he
married her [sic] so she [sic] could obtain
obtained his immigrant status by fraud or
her [sic] legal permanent residence.” A.R.
willful misrepresentation of a material
at 337.
fact. The removal proceedings were
When Tavarez came into the assigned to an IJ.
interview room, the immigration officer
It was incontestable that Pineiro had
informed him that he was no longer
w i th d ra w n h e r s u p po r t , t h e r e by
eligible for permanent resident adjustment
eliminating any possibility of change of
status because his wife withdrew the
Tavarez’s status on the basis of a joint
petition. Tavarez “looked at [his wife] and
applic ation. Tav arez th en file d
said, what you trying to do? You crazy.
applications for a waiver of the obligation
Why you doing this? And all [Pineiro] did
to file a joint application. Under the INA,
was put her head down and didn’t answer
the Attorney General may waive the
obligation of a joint filing requirement for
5 an alien and his spouse if (1) the removal
The testimony given before the
would result in extreme hardship, (2) the
immigration officer is not in the
marriage terminated but was entered into
Administrative Record, but was reported
in good faith, or (3) the marriage was
to the IJ by witnesses at the two hearings
entered into in good faith but that the
held by him.

3
citizen spouse either battered or subjected Tavarez’s house, but stated that they were
the alien spouse to extreme cruelty. INA all from the same neighborhood and that
§§ 216(c)(4)(A)-(C), 8 U.S .C. §§ she “[saw] them all the time together.”
1186a(c)(4)(A)-(C). Tavarez based his A.R. at 148. The IJ characterized Carmen
application on all three statutory Sanchez as a “rather compelling” and
exceptions. “honest witness” in whose testimony he
placed “a great deal of credence.” A.R. at
Sometime thereafter, Pineiro
40. The other witness for Tavarez was
divorced Tavarez. The IJ summarily
Danny Tavarez, Tavarez’s son, who
denied the waivers based on extreme
moved in with the couple in August 1997
hardship and battered spouse, stating that
after leaving the Dominican Republic, and
there was no or almost no evidence for
who testified that Pineiro prepared his
either. The IJ then considered the
meals, picked out his school clothes, and
evidence from the hearing before him and
taught him how to do chores. A.R. at 262.
devoted a significant amount of his
The IJ found this testimony to “be worthy
decision to discussing the issue of whether
of some degree of belief.” A.R. at 40.
the marriage was entered into in good
faith. A waiver under INA § 216(c)(4)(B), In addition, Tavarez testified as did
8 U.S.C. § 1186a(c)(4)(B), permits his daughter. The final witness, Miguel
removal of the conditions on an alien’s Espinal, a friend who attended the
permanent resident status without wedding, testified he would see the couple
requiring his spouse to petition jointly for together, took them to the bank and
such removal if “the qualifying marriage shopping, and cooked with them at their
was entered into in good faith by the alien home. The IJ also considered Pineiro’s
spouse, but the qualifying marriage has sworn statement in reaching his decision
been terminated (other than through the that the marriage was not undertaken in
death of the spouse . . . ).” Id. good faith. Because the IJ concluded that
“this is a case of a friendship, of a
The witnesses before the IJ
relationship of some sort but not a
included Carmen Sanchez, who assisted
marriage,” he denied the application for a
Tavarez and Pineiro in the preparation of
waiver of the joint filing requirement.
immigration documents, tax filings, and in
A.R. at 43. The IJ ruled that Tavarez is
translation at the immigration interview.
removable under section 237(a)(1)(D)(i) of
At the December 7, 1999 hearing before
the INA, 8 U.S.C. § 1227(a)(1)(D)(i),
the IJ, Sanchez testified that in Tavarez’s
because his status as a conditional
bathroom absence while waiting for the
permanent resident was terminated.
immigration officer’s hearing, Pineiro told
Tavarez appealed to the BIA, which
her that unless Tavarez paid her share of
affirmed the decision of the IJ, concluding,
the taxes, she would “drop” his
“Although [Tavarez] submitted evidence
immigration case. A.R. at 132. Sanchez
and testimony that his marriage was in
admitted that she never went to the

4
‘good faith,’ in light of his former wife’s This standard reinforces “the presumption
statement, we defer to the Immigration favoring judicial review of administrative
Judge’ [sic] finding in this case.” A.R. at action.” Block v. Cmty. Nutrition Inst.,
3. Tavarez then filed the pending Petition 467 U.S. 340, 349 (1984). Where
for Review. congressional intent to preclude judicial
review is “fairly discernible” in the detail
II.
of the particular legislative scheme, this
DISCUSSION presumption favoring judicial review does
not apply. Id. at 351; see also Ismailov v.
A. 8 U.S.C. § 1252(a)(2)(B)(ii)
Reno, 263 F.3d 851, 854-55 (8th Cir.
Shortly before oral argument before 2001).
this court, the Government sent the court a
The jurisdictional statute in
letter, pursuant to Federal Rule of
question states:
Appellate Procedure 28(j), stating that
“[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii), Notwithstanding any other
this Court lacks jurisdiction to review [the provision of law, no court
denial of the waiver], because [8 U.S.C.] § shall have jurisdiction to
1186a(c)(4) confers to the Attorney review . . . any other
General’s ‘sole discretion ’ the decision or action of the
determination whether petitioner presented A t t o r n e y G e ne ral th e
evidence of sufficient credibility and authority for which is
weight to satisfy that provision.” 28(j) s p e c i f ie d u n d e r t h is
Letter from the Government, to Office of subchapter to be in the
the Clerk, at 2 (Jan. 13, 2004). We must discretion of the Attorney
first consider this issue of jurisdiction, as General, other than the
it “is axiomatic that this court has a special granting of relief under
obligation to satisfy itself of its own section 1158(a)[, which
jurisdiction. . . .” United States v. Touby, governs asylum,] of this
909 F.2d 759, 763 (3d Cir. 1990) (internal title.6
quotation and citation omitted). We
review jurisdictional questions de novo.
See Luu-Le v. INS, 224 F.3d 911, 914 (9th 6
We address in this opinion the
Cir. 2000).
question of whether we can review
The Supreme Court has held that decisions under 8 U.S.C. § 1186a(c)(4)
only a showing of “clear and convincing “regarding discretionary relief by the
evidence” is sufficient to support a finding Attorney General and his designees,
that Congress intended to preclude judicial which includes, inter alia, IJ, the BIA,
review of an administrative action. Bd. of INS District Directors, and INS Regional
Governors of the Fed. Reserve Sys. v. Commissioners.” Montero-Martinez v.
MCorp Fin., Inc., 502 U.S. 32, 44 (1991). Ashcroft, 277 F.3d 1137, 1140 n.1 (9th

5
8 U.S.C. § 1252(a)(2)(B). removal orders against criminal aliens); §
1252(b)(4)(D) (limiting review of asylum
The language “this subchapter” in
determinations for resident aliens),” Reno
the foregoing provision refers to
v. Am.-Arab Anti-Discrimination Comm.,
Subchapter II in Chapter 12 of Title 8 of
525 U.S. 471, 486-87 (1999) (discussing
the United States Code, and includes
the scope of 8 U.S.C. § 1252(g)). 7
section 1186a, the provision at issue here
that governs conditional permanent The scope of section
resident status based on marriage to a 1252(a)(2)(B)(ii) has been the subject of
United States citizen. some disagreement among the courts of
appeals. Section 1252 is captioned
Congressional intent to preclude
“Judicial review of orders of removal.”
judicial review in situations outlined in
The courts have had to decide whether the
this provision is not merely “fairly
provision strips courts of appeals from
discernible,” it is express and manifest.
reviewing all discretionary decisions or
This jurisdiction-stripping provision is part
of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 7
As the Court noted, there are many
(IIRIRA). The Supreme Court has stated
jurisdiction-stripping provisions in
that “many provisions of IIRIRA are
IIRIRA, some of which appear at first
aimed at protecting the Executive’s
glance to foreclose review in similar
discretion from the courts – indeed, that
kinds of situations. Among the
can fairly be said to be the theme of the
provisions not mentioned by the Supreme
legislation. See, e.g., 8 U.S.C. §
Court: “For example, section 1252(e)
1252(a)(2)(A) (limiting review of any
addresses limitations on judicial review
claim arising from the inspection of aliens
of exclusion orders, including habeas
arriving in the United States); §
review and collateral constitutional
1252(a)(2)(B) (barring review of denials
challenges to the validity of the system;
of discretionary relief authorized by
section 1252(f) provides limitations on
v a r i o u s sta tu to ry provisions); §
injunctive relief available in courts other
1252(a)(2)(C) (barring review of final
than the Supreme Court; and, section
1252(g) bars review of the Attorney
General’s decision to commence
Cir. 2002). Because in the instant case proceedings, adjudicate cases, or execute
the BIA deferred to the findings of the IJ removal orders.” CDI Info. Servs., Inc.
on the relevant “good faith” issue, we v. Reno, 278 F.3d 616, 620 (6th Cir.
review the opinion of the IJ, Abdulai v. 2002). In this opinion, we focus our
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. inquiry upon the scope of 8 U.S.C. §
2001), and will use “IJ” or “BIA” as a 1252(a)(2)(B)(ii) and its applicability to
shorthand for the Attorney General and 8 U.S.C. § 1186a(c)(4), and express no
his designees. position about the other provisions.

6
only those made in the context of removal Tavarez was ineligible for the section
proceedings. Three courts of appeals have 1186a(c)(4)(B) waiver resulted in a final
held that section 1252(a)(2)(B)(ii) applies order of removal.
to all discretionary decisions enumerated
B. 8 U.S.C. § 1186a(c)(4)
in the relevant subchapter of Title 8, which
includes sections 1151-1378, regardless of Section 1186a(c)(4) states:
the context in which the decisions were
(4) Hardship waiver
made. See Samirah v. O’Connell, 335
F.3d 545, 549 (7th Cir. 2003) (revocation The Attorney General, in the
of parole); CDI Info. Servs., 278 F.3d at Attorney General’s
620 (denial of extension of non-immigrant discretion, may remove the
visa); Van Dinh v. Reno, 197 F.3d 427, conditional basis of the
434 (10th Cir. 1999) (transfer of aliens permanent resident status
from one facility to another). for an alien who fails to
meet the requirements of
The Court of Appeals of the Ninth
paragraph (1) if the alien
Circuit, on the other hand, disagrees. In
demonstrates that— . . . .
Spencer Enterprises, Inc. v. United States,
345 F.3d 683 (9th Cir. 2003), the court
held that § 1252(a)(2)(B)(ii) does not bar
(B) the qualifying marriage
review of the decision to issue an
was entered into in good
immigrant investor visa pursuant to §
faith by the alien spouse, but
1153(b)(5). Although the Spencer court
the qualifying marriage has
stated carefully that it “need not decide
been terminated (other than
whether § 1252(a)(2)(B)(ii) applies outside
through the death of the
the context of removal proceedings,” id. at
spouse) and the alien was
692, it concluded that because section
not at fault in failing to meet
1252(a )(2)(B )(ii) refers not to
the requirements of
“discretionary decisions” but to “acts the
paragraph (1), . . .
authority for which is specified under the
INA to be discretionary,” the provision
precludes review on ly o f those
. . . . In acting on
discretionary decisions for which there are
applications under this
no guiding legal standards. Id. at 689
paragraph, the Attorney
(emphasis in original). We need not reach
General shall consider any
that issue in this case nor do we reach the
credible evidence relevant to
issue of whether section 1252(a)(2)(B)(ii)
the application . The
covers discretionary decisions made
determination of w hat
outside the context of removal proceedings
evidence is credible and the
because in this case, the IJ’s finding that
weight to be given that

7
 evidence shall be within the review. Not only may the Attorney
sole discretion of the General make the decision in her or his
Attorney General. discretion, but the Attorney General has
the “sole discretion” to decide “what
8 U.S.C. § 1186a(c)(4) (emphases added).
evidence is credible and the weight to be
The first paragraph of section given that evidence.” § 1186a(c)(4). This
1186a(c) explicitly assigns to the Attorney is particularly relevant here because the
General the discretion to “remove the thrust of Tavarez’s argument is that “the
conditional basis of the permanent resident Board failed to consider [his] objection to
status for an alien” who demonstrates one the manner in which the Immigration
of the three qualifications for waivers that Judge evaluated the evidence.” Pet. Suppl.
follow in the ensuing paragraphs. This Br. at 3-4. The IJ explicitly balanced the
statute thus falls within even the more considerations on the record, and because
narrow reading put forth by the Spencer that balance in this case is dispositive and
court – that determinations in which “the impervious to review, we set forth his
right or power to act is entirely within [the statements in full.
A ttorney General’s] judgmen t or
After discussion of the “best
conscience . . . [and] are matters of pure
evidence for a waiver,” the testimony of
discretion, rather than discretion guided by
Sanchez and Danny Tavarez, the IJ stated:
legal standards,” are those exempted from
j u d i c ia l re vie w b y sectio n On the minus side of the
1252(a)(2)(B)(ii). Spencer Enters., 345 ledger is the fact that there’s
F.3d at 690. And unlike the provision the virtually no documentation
Ninth Circuit exem pted from the at all in this case to establish
jurisdiction-stripping effect of section that this is a legitimate
1252(a)(2)(B)(ii), section 1186a(c) states marriage. There’s one
that the Attorney General may grant such savings account with no
a waiver, not that the Attorney General activity. There’s no
shall grant such a waiver, making clear checking account. There are
that the waiver may not be granted even if no joint leases, the property
the legal requirements of the three waiver that the respondent bought,
qualifications are met. Compare 8 U.S.C. he apparently bought in his
§ 1186a(c), with 8 U.S.C. § 1153(b)(5). own name, so his wife’s not
Section 1252(a)(2)(B)(ii) clearly precludes on that deed. There are no
judicial review of decisions under section affidav its from anyone
1186a(c)(4). familiar with the respondent
or his wife. There’s no
Section 1186a(c)(4) provides the
evidence of co-mingling of
Attorney General’s discretionary decision
assets. There are a few tax
with another layer of protection from
returns, which do suggest

8
 some evidence of life a r e s o m e t i m e s m ix e d
together as husband and motives behind marriages.
wife, but for the most part, There are different feelings.
cons idering that these Apparently, there was a
people were married from f e e l in g o f a f f e c t io n ,
1992 until only about a year friendship and concern for
ago, a period of about eight him but it appears also that
years, there’s nothing here she would not have married
to speak of and it’s him but for the fact that he
remarkable that there is so needed a green card and she
little in this file to show that does not allege in here or
these two people lived admit or concede that she
together. ever received any money for
marrying him. Apparently
A.R. at 40. The IJ continued:
the Service never pressed
The Court believe her to make such a
[sic] that the respondent’s statement because she
then-wife, Eladia, probably doesn’t make one. So it
was around the house, appears that there was some
probably was in the house at sort of relationship, some
some point. She may have sort of friendship but it also
even lived there. The Court appears that it wasn’t really
questions however, whether a marriage. At least not
or not she was ever what what we would consider to
one would call a wife, what be a marriage.
one would think of as a
A.R. at 41.
partner. The Court also
believes that her statement, It follows that whether we agree
which is part of Exhibit 3, is with the IJ’s characterization of the
probably true in the sense underlying evidence as credible vel non
that it says that she married which led him to conclude that this was
him so that he could obtain not a good faith marriage, A.R. at 40, is
his permanent residence and irrelevant, as the statute itself gives the
she wishes to withdraw her Attorney General (acting through his
application but she also designee) the sole discretion to weigh the
hopes that no harm comes to evidence. Courts have been zealous in
him and that he’s allowed to their efforts to pressure our jurisdiction to
stay in the country. That’s review administrative decisions, but that
not an unreasonable position effort must fail under the overarching
for a person to have. There reality that it is Congress that has the

9
power to decide the jurisdiction of the Foti v. INS, 375 U.S. 217, 229 (1963), and
inferior federal courts. And IIRIRA makes ‘all matters on which the validity of the
plain our inability to review precisely the final order is contingent,’ INS v. Chadha,
issue presented here, that is, the relative 462 U.S. 919, 938 (1983) (internal
weight of the evidence. quotations omitted).” Nyonzele, 83 F.3d
at 979. In contrast, sectio n
Tavarez argues that “[a] strikingly
1252(a)(2)(B)(ii) explicitly disallows
similar issue of reviewability was
review of discretionary decisions in the
addressed in the case of Nyonzele v. INS,
context of removal proceedings. The
83 F.3d 975 [(8th Cir. 1996)].” Pet. Suppl.
jurisdictional holding of Nyonzele is no
Br. at 2. The Nyonzele court noted that
longer consistent with the passage of
the hardship waiver at issue there “was
IIRIRA.
initially denied by the district director,”
and that the “district director’s denial of a III.
hardship waiver is not itself appealable.”
CONCLUSION
Id. at 979. It continued, “Because the BIA
reviewed the waiver claim during the We hold that 8 U.S.C. §
deportation proceedings, that decision is 1252(a)(2)(B)(ii) bars us from reviewing
reviewable in this court.” Id. It also noted the discretionary denial of waivers under 8
that because “[e]ach of [the requests for U.S.C. § 1186a(c)(4). The statutory
relief at issue] is a matter statutorily vested provisions that the Attorney General “in
in the discretion of the Attorney General,” [his] discretion, may” remove the
its review was “limited to determining condition on permanent residence without
whether there has been an abuse of a joint application, and that the Attorney
discretion.” Id. Petitioner thus urges us to General has the “sole discretion” to weigh
hear the merits of this appeal under an the evidence and decide which evidence is
abuse of discretion standard. credible, compel our conclusion. 8 U.S.C.
§ 1186a(c)(4) (emphasis added). We will
But Nyonzele was decided before
therefore deny the petition for review.
the enactment of IIRIRA. When Nyonzele
was decided, the relevant jurisdictional
statute was 8 U.S.C. § 1105a (1994),
which gave the courts of appeals
jurisdiction to review all final orders of
deportation. Jurisdiction then was more
broad, and as the Eighth Circuit noted, its
“review of final orders of deportation
pursuant to 8 U.S.C. § 1105a(a) include[d]
‘all determinations made during and
incident to the administrative proceeding .
. . and reviewable together by the [BIA],’

10