Limon v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CORAZON MARTIN LIMON, 
Petitioner, No. 03-71896
v.
 Agency No.
A46-511-004
ALBERTO R. GONZALES, Attorney
General,* OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 15, 2005**
San Francisco, California

Filed April 19, 2005

Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Hawkins

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

4387
4390 LIMON v. GONZALES

COUNSEL

David Ndudim and Anthony Nwosu, Law Offices of David
Ndudim, Sacramento, California, for the petitioner.

Lyle D. Jentzer, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, D.C., for the
respondent.

OPINION

HAWKINS, Circuit Judge:

We must decide the applicability of the jurisdictional bar in
8 U.S.C. § 1252(a)(2)(B)(ii) to the Board of Immigration
Appeals’ (“BIA”) decision that an alien is not eligible for a
waiver of inadmissibility pursuant to 8 U.S.C. § 1182(k)
(commonly referred to as a “section 212(k) waiver”).
Although we conclude that we do have jurisdiction to review
 LIMON v. GONZALES 4391
this eligibility determination, substantial evidence supports
the BIA’s determination that this petitioner was not eligible
for the waiver, and we therefore deny the petition.

Petitioner Corazon Martin Limon, a native and citizen of
the Philippines, became a lawful permanent resident (“LPR”)
based on an immediate relative visa petition by her natural-
ized citizen daughter, Marilou. The government later discov-
ered that Marilou’s marriage to a United States citizen was
invalid due to a prior marriage in the Philippines, and her citi-
zenship was revoked retroactive to the date of citizenship. The
government eventually also served Limon with a notice to
appear (“NTA”), charging her as removable for not having a
valid visa at the time of entry.1 The immigration judge (“IJ”)
sustained this charge, and Limon does not contest this issue
on appeal.

Limon sought a discretionary waiver under 8 U.S.C.
§ 1182(k) and also requested voluntary departure. The IJ
denied both requests, and the BIA affirmed. In her petition for
review, Limon argues that the BIA abused its discretion in
both decisions, while the government contends that this court
lacks jurisdiction to review either decision and must dismiss
the appeal.

FACTS AND PROCEDURAL HISTORY

The background of this case is long and storied. On March
21, 1990, Limon’s daughter, Marilou, married Raoul Paning-
batan in a Filipino civil ceremony. Marilou then returned to
work in Singapore, where she married Sam Burris, a United
States citizen, in 1991. Marilou and Sam divorced in October
1995.
1
The government alternatively charged Limon with having procured her
visa by fraud or willful misrepresentation. The IJ did not sustain this
charge.
4392 LIMON v. GONZALES
Based on the marriage to Sam, Marilou became a natural-
ized United States citizen in January 1996. In July 1997,
Marilou returned briefly to the Philippines and had a church
wedding with Raoul. In November of that year, Limon
entered the United States on an immediate relative visa, based
on her daughter’s citizenship. Shortly thereafter, Marilou,
pregnant with Raoul’s child, permanently returned to the Phil-
ippines to live with Raoul.

The government thereafter issued Marilou a Notice of
Intent to Revoke Naturalization based on its discovery of her
marriage to Raoul. In March 1998, Marilou and Raoul had a
son. That April, Limon visited them in the Philippines, return-
ing to the United States on June 13, 1998. On June 28, 1998,
Marilou’s naturalization was revoked.

In February 1999, Limon was served with the NTA. The
NTA stated two grounds of inadmissibility: (1) procuring a
visa by means of fraud; and (2) lack of a valid visa. The IJ
upheld the latter ground and noted that there was also some
evidence Limon would have known about her daughter’s two
marriages. The IJ denied Limon’s request for a § 212(k)
waiver, stating Limon “should have made reasonable inquiries
about the validity of the marriage upon which [Limon] would
indirectly rely for her own immigrant status.” The IJ also
denied voluntary departure because Limon’s trip to the Philip-
pines “broke her physical presence” and prevented her from
being in the United States for at least one year prior to the
NTA.

Limon appealed to the BIA, challenging the IJ’s adverse
§ 212(k) decision and the denial of voluntary departure, but
not the IJ’s finding of removability. In dismissing Limon’s
appeal, the BIA concluded that Limon failed to meet her bur-
den of showing that she was “unaware of her ineligibility for
admission [and] could not have discovered this ineligibility by
exercise of reasonable diligence.” The BIA reasoned:
 LIMON v. GONZALES 4393
The respondent acknowledged she knew her daugh-
ter married Raoul Paningbatan prior to her marriage
with Samuel Burris, but she never testified that she
investigated whether her daughter obtained a divorce
from Raoul. By simply asking her daughter if she
obtained a divorce from Raoul, she would have been
put on notice that her daughter’s United States citi-
zenship status may be invalid. However, she failed
to do so even though she has communicated with her
daughter about Raoul in the past. Therefore, we find
the respondent failed to exercise reasonable dili-
gence.

On appeal, the respondent argues the only inquiry
she needed was to verify her daughter was in fact a
United States citizen, and the validity of that citizen-
ship is beyond the scope of section 212(k) of the
Act. We disagree. It is reasonable to expect a benefi-
ciary of a visa petition to realize her status would be
affected by a petitioning relative who obtained their
status by fraud.

Limon timely petitioned this court for review.

DISCUSSION

I. Section 212(k) Waiver

A. Jurisdiction

[1] The government argues that the jurisdictional bar in 8
U.S.C. § 1252(a)(2)(B)(ii) precludes any review of decisions
regarding waivers under § 212(k). This provision states in rel-
evant part that: “Notwithstanding any other provision of law,
no court shall have jurisdiction to review — . . . any . . . deci-
sion or action of the Attorney General the authority for which
is specified under this subchapter to be in the discretion of the
Attorney General, other than the granting of relief under sec-
4394 LIMON v. GONZALES
tion 1158(a) of this title [asylum].” 8 U.S.C. § 1252
(a)(2)(B)(ii).

[2] Limon sought a waiver pursuant to 8 U.S.C. § 1182(k),
which provides that:

Any alien, inadmissible from the United States under
paragraph (5)(A) or (7)(A)(i)2 of subsection (a), who
is in possession of an immigrant visa may, if other-
wise admissible, be admitted in the discretion of the
Attorney General if the Attorney General is satisfied
that inadmissibility was not known to, and could not
have been ascertained by the exercise of reasonable
diligence by, the immigrant before the time of depar-
ture of the vessel or aircraft from the last port outside
the United States and outside foreign contiguous ter-
ritory or, in the case of an immigrant coming from
foreign contiguous territory, before the time of the
immigrant’s application for admission.

(emphasis added).

[3] Prior to the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), this
court reviewed denials of § 212(k) waivers. See Senica v. INS,
16 F.3d 1013, 1015 (9th Cir. 1994). We have not addressed
the reviewability of these waivers since IIRIRA’s enactment.
There have, however, been several decisions exploring the
parameters of § 1252(a)(2)(B)(ii) and IIRIRA’s other
jurisdiction-stripping provisions.

[4] In Spencer Enter., Inc. v. United States, 345 F.3d 683
(9th Cir. 2003), this court enunciated the general framework
for applying the jurisdiction-stripping provisions of
2
This is the provision that applies to Limon, who did not appeal the IJ’s
determination that she was not “in possession of a valid unexpired immi-
grant visa” pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).
 LIMON v. GONZALES 4395
§ 1252(a)(2)(B)(ii). There, we noted that, in order for this pro-
vision to apply, the discretionary authority had to be “speci-
fied” under the INA. Id. at 689. Section 212(k) clearly
satisfies this requirement, as it specifies that the ultimate
waiver determination lies in the hands of the Attorney Gen-
eral. 8 U.S.C. § 1182 (k) (“may . . . be admitted in the discre-
tion of the Attorney General”); see also San Pedro v.
Ashcroft, 395 F.3d 1156, 1157 (9th Cir. 2005) (holding that
similar language in 8 U.S.C. § 1227(a)(1)(H) clearly specifies
that the waiver is in the Attorney General’s discretion).

In Spencer Enterprises we also considered the “authority”
component of § 1252(a)(2)(B)(ii), concluding that “[i]f the
authority for a particular act is in the discretion of the Attor-
ney General . . . the right or power to act is entirely within his
or her judgment or conscience. Such acts are matters of pure
discretion, rather than discretion guided by legal standards.”
345 F.3d at 690. We noted that a decision such as whether to
classify an alien’s past offense as a “particularly serious
crime” is lacking in statutory guidelines, and thus left entirely
to the discretion of the Attorney General, which renders the
decision unreviewable. See id. (discussing Matsuk v. INS, 247
F.3d 999, 1002 (9th Cir. 2001)).

[5] Applying these principles, we recently confronted an
appeal from a denial of a waiver of removal under 8 U.S.C.
§ 1227(a)(1)(H). San Pedro, 395 F.3d at 1157. As does
§ 212(k), § 1227(a)(1)(H) clearly commits the decision to
grant or deny the waiver to the discretion of the Attorney
General, and it also sets forth various eligibility requirements
for the waiver, such as being the spouse, parent, son or daugh-
ter of a U.S. citizen or LPR, and being in possession of an
immigrant visa. In San Pedro, the IJ had found the petitioner
statutorily ineligible for the waiver because he failed to pos-
sess an immigrant visa or equivalent document, and also alter-
natively denied the waiver in the exercise of discretion. Id.
The BIA summarily affirmed. We remanded for the BIA to
specify the basis for its affirmance, explaining that if it
4396 LIMON v. GONZALES
affirmed the IJ’s discretionary determination, we would lack
jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii). Id. On the
other hand, we noted, we would have jurisdiction to review
the nondiscretionary statutory eligibility elements, if they
instead formed the basis of the BIA’s decision. Id.

We have reached similar conclusions in other contexts. In
dealing with cancellation of removal, we have exercised juris-
diction over various non-discretionary eligibility require-
ments, such as the determination as to whether there has been
“continuous physical presence” in the United States, even
though we lack jurisdiction to review the ultimate discretion-
ary decision by the Attorney General. See Lopez-Alvarado v.
Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004). In the same
context, however, we held that the existence of “exceptional
and extremely unusual hardship” is a subjective, discretionary
inquiry, and that we lack jurisdiction to review this discretion-
ary determination by the Attorney General. Romero-Torres v.
Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003).

In Nakamoto v. Ashcroft, 363 F.3d 874 (9th Cir. 2004), we
determined that we have jurisdiction to review the BIA’s find-
ing that an alien committed marriage fraud. Similar to the lan-
guage in § 212(k), the provision at issue in Nakamoto
provides that an alien shall be deportable if “it appears to the
satisfaction of the Attorney General that the alien has failed
or refused to fulfill the alien’s marital agreement which in the
opinion of the Attorney General was made for the purpose of
procuring the alien’s admission as an immigrant.” Id. at 879
(citing 8 U.S.C. § 1227(a)(1)(G)(ii)) (emphasis added). We
found that the phrases “to the satisfaction of the Attorney
General” and “in the opinion of the Attorney General” were
used to identify the decision-maker, and not to specifically
grant discretionary authority to the Attorney General. See id.
at 879-80. We further concluded that the determination of
whether an individual had procured a visa by marriage fraud
is “a question of fact, determined through the application of
traditional legal standards . . . . The Attorney General must
 LIMON v. GONZALES 4397
undertake an objective inquiry and refrain from imposing his
or her own subjective values on the interpretation of the
facts.” Id. at 881. Thus, we determined that the decision was
not entirely discretionary and that § 1252(a)(2)(B)(ii) did not
deprive this court of jurisdiction. Id.

[6] Applying the principles from this line of cases, it seems
likely that we would lack jurisdiction over the ultimate exer-
cise of discretion as to whether or not to grant the § 212(k)
waiver. Cf. San Pedro, 395 F.3d at 1157-58. However, in this
case the BIA did not actually exercise that discretion. Rather,
the BIA determined that Limon had not met her burden of
proving eligibility for the waiver, because she did not exercise
reasonable diligence to ascertain the validity of her visa.
Accordingly, the question before us is whether the phrase “if
the Attorney General is satisfied that inadmissibility was not
known to, and could not have been ascertained by the exercise
of reasonable diligence,” 8 U.S.C. § 1182(k), is a discretion-
ary or nondiscretionary eligibility element.

[7] We conclude that this element is nondiscretionary. The
determination of whether the petitioner knew or should have
known of her inadmissibility is essentially factual in nature,
“determined through the application of traditional legal stan-
dards.” Nakamoto, 363 F.3d at 881. Likewise, “reasonable
diligence” is a factual determination, resolved by the applica-
tion of a legal standard to the facts in question. Indeed, “rea-
sonableness” is a common legal standard, and an objective
one at that, indicating that this is not a determination the
Attorney General makes “solely according to the dictates of
his or her conscience.” Id.; see also San Pedro, 395 F.3d at
1157 (“The specified discretion must be pure and unguided by
legal standards.”); Hernandez v. Ashcroft, 345 F.3d 824, 833-
35 (9th Cir. 2003) (holding that “extreme cruelty” is a non-
discretionary question, determined through the application of
legal standards). Therefore, because the BIA denied Limon’s
request based on this nondiscretionary eligibility requirement,
4398 LIMON v. GONZALES
we have jurisdiction over Limon’s petition for review of this
issue.

B. Reasonable Diligence

Having determined that we have jurisdiction, we now turn
to the question of whether substantial evidence supports the
BIA’s determination that Limon did not bear her burden of
demonstrating that she did not know or could not have discov-
ered the problem with her status by reasonable diligence. See
Lopez-Alvarado, 381 F.3d at 850. Because the record does not
compel a contrary conclusion, we deny Limon’s petition. Id.
at 851 (to obtain reversal under the substantial evidence stan-
dard, the petitioner must show that the evidence compels that
result).

The facts admitted by Limon suggest that at the very least
she was on notice that her daughter’s marriage to Sam Burris
was suspect. Limon testified before the IJ that Marilou had
married Raoul in the Philippines, and that her daughter later
wrote to her that she had married Sam Burris, though Limon
could not remember how much time had elapsed between the
two events. When asked if Marilou ever told Limon that she
did not get a divorce from Raoul, Limon responded: “The
only thing that she told me was she asked me if I had seen
Raoul, and I told her that I hadn’t seen him, I didn’t see him
anymore. Because she said that there was a letter saying that
they were not getting along.” Limon also testified that in
December 1997 (one month after Limon’s initial entry in the
United States), Marilou returned to the Philippines to live
with Raoul and had a child with him three months later.

After her brief visit to the Philippines in 1998, Limon also
had an interview with an immigration official in Hawaii upon
her return. In this interview, she confirmed that she had immi-
grated to the United States on her daughter’s petition, and that
her daughter had immigrated by marrying a U.S. citizen. She
also indicated that Sam was not Marilou’s first husband, and
 LIMON v. GONZALES 4399
Limon claimed that she did not know what happened to the
marriage to Raoul. She further indicated that Marilou was
presently married to Raoul, and that they married in 1988 or
1989, before the marriage to Sam. Asked if Marilou and
Raoul got divorced, she stated “My daughter told me they had
a fight after they got married so she went back to Singapore
and that’s how she met Sam. She did not mention anything to
me about getting a divorce with [Raoul].”

[8] Limon’s own testimony shows that she knew of the
marriage to Raoul, and also knew that her daughter’s citizen-
ship was based on the marriage to Sam, but never inquired
whether her daughter had divorced Raoul. Her responses actu-
ally indicate Limon still believed the date of Marilou’s mar-
riage to Raoul was 1988 or 1989. Moreover, considering that
Marilou had to have been pregnant with Raoul’s child at the
time Limon entered the United States, it is not unreasonable
to conclude that Limon had notice that the marriage to Sam
Burris had been bigamous and probably fraudulent.

In light of this factual background, the BIA concluded that
“[i]t is reasonable to expect a beneficiary of a visa petition to
realize her status would be affected by a petitioning relative
who obtained their status by fraud.” This is consistent with
analogous BIA authority, Matter of Aurelio, 19 I. & N. Dec.
458 (BIA 1987), a case in which a visa applicant’s American
citizen father died before she received her visa. There, the
BIA stated:

It is also argued in regard to the female applicant’s
diligence in ascertaining her inadmissibility that it
would be unreasonable to assume knowledge of our
immigration laws by people living in remote Philip-
pine villages. Although the applicants undoubtedly
were not familiar with the statutory and regulatory
provisions of our immigration laws, we agree with
the immigration judge that a reasonable person
would understand that eligibility for a visa depends
4400 LIMON v. GONZALES
on the continuing existence of a relationship to the
petitioning relative. It is not unreasonable to expect
the beneficiary of a visa petition to realize that his
immigration status would be affected by the death of
the petitioning relative. Since the female applicant
knew about her father’s death for some time before
she received her visa, she could easily have inquired
about its impact on her visa application. Under the
circumstances present in this case, we conclude that
the female applicant failed to exercise reasonable
diligence in ascertaining her admissibility to the
United States as a fourth-preference immigrant. We
therefore find that the immigration judge properly
denied the applicants’ section 212(k) waiver request.

Id. at 463.

[9] Limon argues that she should only have to confirm that
her daughter was a U.S. citizen and had been married to Sam
Burris, and that she should not have to verify that Marilou had
obtained a divorce from Raoul. However, in light of the
unusual factual circumstances of this case, which strongly
suggest Limon’s knowledge of the irregularity, this does not
appear to be an unreasonable burden. The record does not
compel the conclusion that Limon exercised reasonable dili-
gence to ascertain her admissibility, and we therefore deny
her petition.

II. Voluntary Departure

Limon also argues that she was denied due process by the
IJ’s denial of voluntary departure. She contends that, at the
time the IJ ruled, there were no established standards to evalu-
ate the one-year continuous presence requirement contained
in the Act.

[10] However, 8 U.S.C. § 1229c(f) provides: “[n]o court
shall have jurisdiction over an appeal from denial of a request
 LIMON v. GONZALES 4401
for an order of voluntary departure . . . .” In contrast to the
jurisdiction-stripping provisions of 8 U.S.C.
§ 1252(a)(2)(B)(ii) discussed above, we have construed
§ 1229c(f) to divest this court of all jurisdiction to review
both discretionary and nondiscretionary denials of voluntary
departure, including statutory eligibility for voluntary depar-
ture. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1166 (9th Cir.
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir.
2003); see also Montero-Martinez v. Ashcroft, 277 F.3d 1137,
1143-44 (9th Cir. 2002) (citing § 1229c(f) as an example of
“when Congress really wanted to eliminate judicial review
over all determinations made by the BIA, discretionary and
nondiscretionary, it certainly knew how to write a statute
unambiguously to accomplish that purpose”). Although
couched as a “due process” claim, it is clear that Limon is
actually challenging the BIA’s determination that she is statu-
torily ineligible for voluntary departure because of the contin-
uous presence requirement. Because we have no jurisdiction
to review this eligibility requirement, we must dismiss the
portion of Limon’s petition challenging the denial of volun-
tary departure.

CONCLUSION

We have jurisdiction to review the denial of the § 212(k)
waiver in this case because the decision was not an exercise
of discretion, but was based on facts and the application of
traditional legal standards. Nonetheless, substantial evidence
supports the BIA’s determination that Limon did not exercise
reasonable diligence to ascertain her admissibility. We lack
jurisdiction to review the denial of voluntary departure and
dismiss that portion of her appeal.

DENIED in part, DISMISSED in part.