United States Court of Appeals
For the First Circuit
No. 10-2013
JOSÉ LUÍS MCKENZIE-FRANCISCO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya and Howard,
Circuit Judges.
Raymond Sánchez Maceira on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Terri
J. Scadron, Assistant Director, Office of Immigration Litigation,
and Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
December 5, 2011
SELYA, Circuit Judge. The petitioner, José Luís
McKenzie-Francisco, is a native and citizen of the Dominican
Republic. He seeks judicial review of a final order of the Board
of Immigration Appeals (BIA) refusing to remove a condition
encumbering his resident status and mandating his removal to his
homeland. After careful consideration, we deny the petition.
The stage can quickly be set. In 1999, the petitioner
entered the United States without inspection. He married Jennifer
Ann Cordero Estrella (Cordero), a United States citizen, on March
23, 2001. As a result, the government granted him conditional
resident status. See 8 U.S.C. § 1186a(a)(1).
The marriage did not last. The couple divorced in early
2004 (while the petitioner was still a conditional resident). The
petitioner nonetheless sought to remove the condition within the
prescribed two-year period. See id. § 1186a(d)(2).
Because the divorce prevented him from submitting the
standard joint petition for removal of the condition, see id.
§ 1186a(c)(1), (d)(1), he applied for a hardship waiver of the
petition requirement, see id. § 1186a(c)(4)(B). In furtherance of
this waiver request, he represented that his failed marriage had
been entered into in good faith. The waiver request did not fare
well. The appropriate immigration authorities denied it;
terminated his lawful resident status, see id. § 1186a(c)(2)(A);
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and initiated removal proceedings against him, see id. § 1227(a)(1)(D)(i).
In the immigration court, the petitioner renewed his
waiver request. The immigration judge (IJ) received documentary
evidence and heard testimony from both the petitioner and his ex-
wife. At the close of all the evidence, the IJ concluded that the
marriage had not been entered into in good faith and denied the
waiver. She then ordered that the petitioner be removed to the
Dominican Republic.
Discerning no error, the BIA affirmed the IJ's decision.
This timely petition for judicial review followed.
The petitioner's main argument is that the IJ erred in
finding that the marriage was a sham. As a secondary matter, he
upbraids the IJ for stating that the sole purpose of the marriage
was to circumvent the immigration laws. In the petitioner's view,
this ipse dixit has unfair collateral consequences1 and implicates
his due process rights because he had no notice that his motivation
would be in issue. We address these arguments sequentially,
pausing first to sketch some of the governing legal principles.
In immigration cases, we review the agency's findings of
fact in accordance with the familiar substantial evidence rule.
Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir. 2011).
1
The collateral consequence that the petitioner most fears is
evident. An alien determined to have entered into a marriage for
the purpose of evading the immigration laws is permanently
ineligible for immigrant status. See 8 U.S.C. § 1154(c).
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Consequently, we will honor such findings as long as they are
"supported by reasonable, substantial and probative evidence on the
record considered as a whole." Seng v. Holder, 584 F.3d 13, 17
(1st Cir. 2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). A credibility determination is a finding of fact, and we
will set aside such a determination only if "the evidence is such
as would compel a reasonable factfinder to reach a contrary
conclusion." Id. We review conclusions of law de novo but with
some deference to the agency's founded interpretation of statutes
and regulations that it administers. Mariko v. Holder, 632 F.3d 1,
5 n.2 (1st Cir. 2011).
We turn from these general norms to the particular legal
framework that pertains here. In order to convert conditional
residency status into permanent residency status by virtue of
marriage to a United States citizen, an alien and his citizen
spouse must first submit a joint petition. 8 U.S.C.
§ 1186a(c)(1)(A); see also Castro-Soto v. Holder, 596 F.3d 68, 70
(1st Cir. 2010). If the alien is unable to do so because of an
intervening divorce, he must secure a hardship waiver. 8 U.S.C.
§ 1186a(c)(4)(B). The availability of such a waiver depends in
part on the alien's ability to demonstrate that he had entered into
the marriage in good faith. Id.
The alien has the burden of proof on this issue. See
Boluk v. Holder, 642 F.3d 297, 301-02 (2d Cir. 2011); see also 8
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U.S.C. § 1186a(c)(4). To carry this burden, he must show that, at
the time that the newlyweds plighted their troth, he intended to
establish a life with his spouse. See Cho v. Gonzales, 404 F.3d
96, 102 (1st Cir. 2005). Employing this framework, we find ample
support in the record for the determination that the petitioner's
marriage was not contracted in good faith.
The IJ based her determination primarily on glaring
contradictions in the divorced spouses' accounts of how their
wedding was celebrated. These contradictions went to the heart of
the matter because when a man and woman enter into a good-faith
marriage, their wedding day is a significant (and, therefore,
memorable) event.
In the case at hand, the petitioner and Cordero gave
vastly divergent descriptions of their wedding day. The petitioner
testified that their decision to wed was made on the spur of the
moment and without any advance planning; that Cordero's parents
were neither invited to nor present at the wedding; and that the
participants, the minister, and two legally required witnesses were
the only people in attendance. Cordero flatly contradicted this
account. She vouchsafed that the couple had set the date in
advance and had planned the wedding for a period of time. She also
testified that her parents, along with her daughter and several of
the petitioner's friends, were in attendance. The IJ inferred from
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these major inconsistencies that neither the petitioner nor his ex-
wife were credible witnesses.
Here, moreover, other testimony about the couple's
relationship contributed to the IJ's doubts. For example, the
petitioner claimed to have courted Cordero while she was living
with her sister but could not remember how many live-at-home
children Cordero's sister had. He also could not recall either the
name of Cordero's child from a previous relationship or where
Cordero worked. The petitioner's lack of familiarity with such
rudimentary facts is powerful evidence that the couple never
intended to establish a life together.
This web of inconsistencies and gaps in knowledge defies
explanation. What is even more telling, however, is that the IJ
observed a pas de deux that erased any doubts about the couple's
lack of veracity. During Cordero's testimony, the IJ caught the
petitioner signaling to Cordero by shaking his head. This was a
blatant attempt to influence a witness's testimony by improper
means and, as such, strongly supports an adverse credibility
determination. See Falae v. Gonzáles, 411 F.3d 11, 15 (1st Cir.
2005).
The petitioner seeks refuge in the extrinsic evidence —
but this evidence is thin. It is, for example, lacking the type of
memorabilia that marriages typically produce. What evidence is in
the record is a mixed bag. For instance, despite the fact that the
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petitioner and Cordero filed joint income tax returns in 2001 and
2003, they presented no evidence that their finances were
commingled.2
To say more on this point would be to paint the lily.
Given the contents of the record, we are confident that the adverse
credibility determination passes muster under the substantial
evidence test. See, e.g., Syed v. Ashcroft, 389 F.3d 248, 252 (1st
Cir. 2004); see also 8 U.S.C. § 1252(b)(4)(B). With that
determination in place, the record scarcely compels a conclusion
that the petitioner's marriage to Cordero was entered into in good
faith. Accordingly, the hardship waiver was appropriately denied.
We need not linger long over the petitioner's plaint that
his due process rights were compromised. This plaint is hopeless.
The petitioner put the bona fides of his marriage in issue by
requesting a hardship waiver. In view of this request, he cannot
credibly complain that he lacked notice that the question of his
intentions would be adjudicated.3
2
The petitioner adverts to the fact that the couple shared a
"Sam's Club" card. But that is something that easily can be
procured by any two unrelated individuals. Consequently, its
existence is of little moment.
3
Given the issues before her, the IJ was only required to
determine whether the petitioner's marriage was entered into in
good faith. See 8 U.S.C. § 1186a(c)(4)(B). The comment about
which the petitioner complains — the IJ's statement concerning an
intention to flout the immigration laws — was therefore dictum. As
such, it cannot be used against the petitioner should he
subsequently seek to return to the United States. See generally
Munic. of San Juan v. Rullan, 318 F.3d 26, 28 n.3 (1st Cir. 2003)
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We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
(explaining that dictum has "no binding effect in subsequent
proceedings in the same (or any other) case").
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