Cabrera v. Lynch

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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