United States Court of Appeals
For the First Circuit
No. 10-1750
JUAN FERNANDO RESTREPO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.
Randy Olen, on brief for petitioner.
Nancy E. Friedman, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Tony West, Assistant
Attorney General, Civil Division, and Richard M. Evans, Assistant
Director, on brief for respondent.
April 12, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
TORRUELLA, Circuit Judge. Juan Fernando Restrepo
("Restrepo"), a native and citizen of Colombia, asks us to review
a decision of the Board of Immigration Appeals ("BIA") denying his
application for cancellation of removal under Section 240A(b) of
the Immigration and Nationality Act ("INA"). After carefully
considering Restrepo's claims, we deny his petition for review.
I. Background
Restrepo entered the United States on or about
September 24, 1988 as a visitor with permission to remain in the
country until March 23, 1989. Restrepo overstayed his visa and, in
1990, married his wife, María, a fellow Colombian national. In the
ensuing years, the couple settled in the United States and had two
children.
According to Restrepo, by 1995, all was not well between
the couple -- Restrepo was unfaithful and María discovered his
infidelity. Restrepo soon moved out of the family home in
Pawtucket, Rhode Island and moved in with his sister.
In February 1996, Restrepo's father petitioned for an
immigrant visa (Form I-130) on Restrepo's behalf. Restrepo's
father filed his petition under section 203(a)(2)(B) of the INA,
8 U.S.C. § 1153(a)(2)(B), which permits "unmarried sons or
unmarried daughters" of an alien who has been lawfully admitted for
permanent residence in the United States to obtain a visa. The
petition was approved on September 10, 1996, despite the fact that
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Restrepo and María, though separated, were still married at the
time.
Restrepo and María finalized their divorce just one month
later, in October 1996. That same month, María married Carlos Ríos
("Ríos"), a U.S. citizen. Subsequently, Ríos filed an immigrant
visa petition for María and she eventually attained lawful
permanent resident ("LPR") status as Ríos's spouse.
At some point in 1999, María and Restrepo ostensibly
reconciled their differences. In 2000, the couple had a third
child, though María and Ríos were still married at the time. María
eventually divorced Ríos in September 2001 and remained with
Restrepo thereafter, remarrying him on March 14, 2004.
Also in September 2001, Restrepo -- who still held the
immigrant visa that he obtained in September 1996 -- filed to
adjust his status to that of LPR. The relevant paperwork, it
seems, raised bureaucratic eyebrows: on May 3, 2004, the Department
of Homeland Security denied Restrepo's request for adjustment and
revoked his immigrant visa once it determined that, since Restrepo
was still married to María in September 1996, he was ineligible for
the visa at the time his father filed an immigrant visa petition on
his behalf. The government set Restrepo's removal proceedings in
motion on the same day.
Restrepo conceded removability, but applied for
cancellation of removal under INA § 240A(b) and voluntary departure
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under INA § 240B. See 8 U.S.C. §§ 1229b-c. Over the next few
years,1 Restrepo submitted evidence in support of his application
for cancellation, including letters and affidavits prepared on his
behalf. Restrepo and María also testified at hearings held before
an immigration judge ("IJ") in July 2008 and February 2009.
The IJ denied Restrepo's application for cancellation of
removal on February 18, 2009. In denying Restrepo's application,
the IJ found that Restrepo had failed to show that he was a "person
of good moral character" while living in the United States, see
8 U.S.C. § 1229b(b)(1)(B), insofar as facts did not suggest that
his 1996 divorce from María "was anything other than a sham to
enable him to adjust status on the basis of the visa petition that
his father had submitted for him." Explaining her reasoning, the
IJ noted that Restrepo had a third child with María while she was
married to Ríos and underscored her belief that María had given
"conflicting information" about her reasons for divorcing Ríos.
Most critically, the IJ expressed grave concerns about the fact
that Restrepo remarried María, by then an LPR, less than two months
before his petition for adjustment of status was denied and his
1
Restrepo's removal proceedings were continued for a brief period
of time because in March 2005, María, who by then had been
remarried to Restrepo for about a year, filed a visa petition on
his behalf by virtue of her status as a permanent resident applying
for naturalization. However, in April 2005, the U.S. Citizenship
and Immigration Services denied María's naturalization application
when it determined that María's marriage to Ríos (which had allowed
her to obtain LPR status) was a sham. Restrepo's removal
proceedings then resumed.
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visa revoked. The IJ found this timing "disturbing" and
"significant" because neither the letters nor the affidavits that
various people submitted to support Restrepo's application for
cancellation of removal mentioned that he was divorced and later
remarried. The IJ also noted that one of Restrepo's daughters, who
testified at his hearings, did not mention having suffered
emotional problems as a result of the divorce. Additionally, the
IJ noted that although testimony suggested that Restrepo was an
avid churchgoer, his pastor was "unaware that [Restrepo] and
[María] were divorced and did not remarry for over four years after
they began living together again."
Going further, the IJ also concluded that Restrepo and
María had provided false testimony before the immigration court to
the extent that they stood by their claims that they divorced for
legitimate reasons not related to obtaining immigration benefits.
The IJ cited the timing of the purported marital falling out and
divorce -- i.e., the fact that the couple separated just before
Restrepo's father filed a visa application on his behalf -- and
María's marriage to Ríos, a U.S. citizen, shortly thereafter as
supportive of her conclusion. The IJ also noted that María
remembered peculiarly little about her marriage to Ríos and could
not show that she ever lived with him. In light of the
"significant disruption" that Restrepo's removal would cause on his
family, the IJ stated that she might have been willing to give him
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the benefit of the doubt if Restrepo had come clean as to the true
immigration status adjustment-related motives behind the couple's
divorce. Ultimately, however, the IJ explained that she could
hardly overlook the fact that Restrepo not only engaged in a sham
divorce, but also offered false information in his adjustment
filings and in his testimony to the court. Accordingly, the IJ
determined that, as a person lacking good moral character, Restrepo
was statutorily barred from obtaining either cancellation of
removal or voluntary departure.
Restrepo appealed and the BIA affirmed the IJ's decision
on May 24, 2010. See In re Juan Fernando Restrepo, No. A079-738-
001 (B.I.A. May 24, 2010). The BIA noted that it was required to
accept the IJ's factual determinations unless they were clearly
erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (BIA "will accept the
determination of factual issues by an immigration judge . . .
unless the determination is clearly erroneous"). The BIA then
recounted the evidence the IJ used to buttress her decision and
concluded that it was sufficient to affirm her conclusions
regarding Restrepo's lack of good moral character.
II. Discussion
A. Cancellation of Removal and Our Authority to Review Restrepo's
Petition
Under 8 U.S.C. § 1229b(b), the BIA may grant cancellation
of removal if the petitioner establishes certain requirements. See
Toribio-Chávez v. Holder, 611 F.3d 57, 64 (1st Cir. 2010).
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Specifically, cancellation may issue if an alien "(a) has resided
in the United States for a continuous period of ten years; (b) has
been a person of good moral character during such period; (c) has
not been convicted of certain offenses; and (d) has established
that removal would result in exceptional and unusual hardship to a
qualifying family member." Id. It is the second of the above-
cited eligibility factors -- requiring an alien applying for
cancellation of removal to show that he has been a "person of good
moral character" while residing in the United States for an
uninterrupted ten-year period -- that is important to Restrepo's
petition.2
The regime that Congress has set in place narrowly
defines our authority to review a petition like Restrepo's. The
provision codified at 8 U.S.C. § 1252 "divests federal courts of
jurisdiction to review 'any judgment regarding the granting of
relief' relative to cancellation of removal." González-Ruano v.
Holder, 662 F.3d 59, 63 (1st Cir. 2011) (internal citation
omitted). The statute thereby leaves the matter of whether an
alien should receive such relief to the Attorney General's
2
During proceedings before the IJ, the government did not dispute
that Restrepo had resided in the United States for ten years before
being placed in removal proceedings nor did it contest Restrepo's
claim that removal would result in exceptional and extremely
unusual hardship to his family members. The IJ determined that
Restrepo had established these factors. Whether Restrepo had been
convicted of any of the various offenses that would bar him from
cancellation of removal relief does not appear to have been at
issue.
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discretion and precludes our review in the absence of a "colorable
constitutional claim or question of law." Elysee v. Gonzales, 437
F.3d 221, 223 (1st Cir. 2006); see also Cruz-Camey v. Gonzales, 504
F.3d 28, 29 (1st Cir. 2007).
Within this context, the manner in which we approach a
finding of lack of good moral character could unfold in either of
two ways, depending on whether or not the agency exercised its
discretion in reaching its determination. See Bernal-Vallejo v.
I.N.S., 195 F.3d 56, 62 (1st Cir. 1999) (noting good moral
character determination "may involve either a non-discretionary
question of fact or a discretionary determination"). Because "a
finding of lack of good moral character is required, under 8 U.S.C.
§ 1101(f), for aliens belonging to certain per se categories," id.
(emphasis added), a determination that an alien may not receive
cancellation of removal relief because he belongs to any of those
statutorily-defined categories presents a non-discretionary
determination which we would be able to review for substantial
evidence. However, our review of a determination of lack of good
moral character that is not grounded on the per se categories found
in § 1101(f) -- that is, a discretionary finding -- would still lie
outside of our jurisdiction and would be accordingly barred from
review. See id.
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B. Determination that Restrepo Offered False Testimony
Where, as here, the BIA adopts an IJ's decision but opts
to offer a glimpse into its considerations, we review both the
decision of the BIA and the IJ. See Wiratama v. Mukasey, 538 F.3d
1, 3 (1st Cir. 2008).
In this case, the IJ's character findings as to Restrepo
appear to have been twofold. First, the IJ determined that
Restrepo lacked good moral character insofar as it was evident to
her that Restrepo had engaged in a sham divorce for the purpose of
securing immigration benefits. Second, the IJ found that Restrepo
and his wife had provided false testimony to the court regarding
the reasons behind their divorce. The latter reason, the IJ
explained, forced her hand and rendered her unable to give Restrepo
the benefit of the doubt as to whether he had been a person of good
moral character during the relevant period. See 8 U.S.C. § 1101
(f)(6) (precluding a person who has "given false testimony for the
purpose of obtaining [immigration] benefits" from being found to
have "good moral character"); see also Toribio-Chávez, 611 F.3d at
64 n.6.
The IJ's binary findings thus bring us to a natural pause
in our discussion. Because the IJ's determination that Restrepo
underwent a sham divorce and was thus barred from being regarded as
a person of good moral character rested on discretionary grounds,
our inquiry could very well be at an end. See Zajanckauskas v.
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Holder, 611 F.3d 87, 89 (1st Cir. 2010) ("'If there are two
alternative grounds for a decision and we lack jurisdiction to
review one, it would be beyond our Article III judicial power to
review the other. Absent authority to review the discretionary
ground, any opinion . . . reviewing the nondiscretionary ground
could not affect the final order's validity and so would be
advisory only.'" (alterations omitted) (quoting Ekasinta v.
Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005))).
We hesitate, however, to turn away at the threshold.
Although at first blush the IJ's alternate and discretionary basis
for her holding appears to foreclose our review of Restrepo's
petition, the IJ nevertheless noted that she could have given
Restrepo the benefit of the doubt as to his being a person of good
moral character during the requisite period but for her collateral
conclusion that Restrepo had provided false testimony to the court.
It therefore seems that the IJ ultimately predicated her decision
to deny Restrepo cancellation of removal relief on her finding that
he had offered false testimony at his immigration hearings. Since
false testimony presents a non-discretionary ground for denial that
is within the scope of our jurisdiction, see 8 U.S.C. § 1101(f)(6),
we proceed to review the agency's reasoning for substantial
evidence. Under this standard, "[w]e review the agency's factual
findings, including credibility determinations . . . and may
overturn those findings only if 'any reasonable adjudicator would
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be compelled to conclude the contrary.'" Lin v. Gonzales, 503 F.3d
4, 7 (1st Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).
As noted above, a person found to have provided false
testimony "during the period for which good moral character is to
be established," 8 U.S.C. § 1101(f)(6), is per se deemed to lack
good moral character. For our present purposes, false testimony
"is limited to oral statements made under oath" and, specifically,
"only to those misrepresentations made with the subjective intent
of obtaining immigration benefits." Kungys v. United States, 485
U.S. 759, 780 (1988). Misrepresentations made to satisfy other
motives -- e.g., embarrassment, fear, or a desire for privacy -- do
not qualify as false testimony under the statute. See id.
Restrepo does not fare well on the merits. Substantial
evidence in the record supports the IJ's determination -- and the
BIA's reasoned affirmance of the IJ's finding -- that Restrepo,
while under oath, provided false testimony at his immigration
hearings regarding the motives underlying his divorce from María in
1996. Here, the IJ and the BIA both considered several facts that,
taken together, they determined significantly undermined Restrepo's
credibility. The IJ, in particular, expressed her skepticism that
none of the authors of the several letters Restrepo submitted in
support of his application -- some of whom had known Restrepo for
at least 25 years -- alluded to the fact that Restrepo and María
had been divorced or separated. Further, the IJ and the BIA both
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noted that once divorced, María married Ríos, a U.S. citizen,
almost immediately thereafter and subsequently obtained LPR status
as Ríos's spouse. The BIA's decision also recounted other evidence
upon which the IJ relied, such as the fact that Restrepo and María
conceived a child while she was married to Ríos; that Restrepo
remarried María in March 2004 just a few months before Restrepo was
placed in removal proceedings; and that, once remarried to
Restrepo, María almost immediately filed an alien relative petition
on his behalf. It was reasonable for both the IJ and the BIA to
conclude that this evidence supported a conclusion that Restrepo
offered false testimony inasmuch as he insisted at his hearings
before the IJ that he divorced María for legitimate reasons
unrelated to securing immigration benefits. We accordingly find no
reason to affect the IJ's credibility determination or corollary
finding that Restrepo is statutorily precluded from obtaining
cancellation of removal relief. See Toribio-Chávez, 611 F.3d at
64-65 (upholding denial of cancellation of removal due to
§ 1101(f)(6) per se lack of good moral character finding based, in
part, on IJ's finding that petitioner's testimony was not
credible); Becerril v. Holder, No. 07-71290, 2010 WL 236152, at *1
(9th Cir. Jan. 21, 2010) (same).
C. Adverse Credibility Determination
In his briefing to this Court, Restrepo heavily relies on
In re A-S-, 21 I. & N. Dec. 1106 (B.I.A. 1998), which he claims
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should have guided the analysis the BIA followed when it assessed
the IJ's credibility findings. Under In re A-S-, discrepancies or
omissions going to the heart of a petitioner's claim may support an
adverse credibility finding, but only where a three-prong test is
also satisfied. The BIA thus accords deference to an IJ's adverse
credibility determination if:
(1) the discrepancies and omissions described
by the Immigration Judge [are] actually []
present in the record;
(2) the discrepancies and omissions [] provide
specific and cogent reasons to conclude that
the alien provided incredible testimony; and
(3) a convincing explanation for the
discrepancies or omissions [are] not []
supplied by the alien.
Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006).
The government parries Restrepo's claim that the BIA
should have worked within the In re A-S- framework by noting that
the BIA's decision in that case and our application of the cited
factors in Hoxha v. Gonzales, 446 F.3d 210 (1st Cir. 2006), were
circumscribed to the asylum context. In particular, the government
appears to contend that these cases are solely apposite to asylum
claims examined under the rubric in place before the enactment of
the REAL ID Act, which became effective on May 11, 2005. See
Kartasheva v. Holder, 582 F.3d 96, 104 n.7 (1st Cir. 2009) (noting
that in cases predating REAL ID Act an "IJ's adverse credibility
finding 'cannot rest on trivia but must be based on discrepancies
that involved the heart of the asylum claim.'" (quoting Hem v.
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Mukasey, 514 F.3d 67, 69 (1st Cir. 2008) (internal quotations
omitted)); see also Dehonzai v. Holder, 650 F.3d 1, 10 n.11 (1st
Cir. 2011) ("Following passage of the REAL ID Act, an adverse
credibility determination may be based on an inconsistency in the
applicant's testimony 'without regard to whether [the]
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim.'" (quoting 8 U.S.C. 1158(b)(1)(B)(iii))).
We are not convinced that these cases can be so easily
distinguished from the one before us and note that the BIA has
cited the In re A-S- three-pronged framework for assessing an IJ's
credibility determinations in deciding an appeal involving a denial
of an alien's application for cancellation of removal at least once
in the past. See In re: Bruno Alfredo Dellepiane, No. A26-608-123,
2007 WL 2463970 (B.I.A. Aug. 1, 2007) (unpublished decision).
However, even if the In re A-S- framework were applicable in this
context, it would not help Restrepo. Under the In re A-S- three-
pronged assessment, for the BIA to accept the IJ's credibility
determination, it would have had to conclude that (1) Restrepo's
and María's testimony conflicted with other evidence in the record;
(2) the discrepancies were reason enough to conclude that Restrepo
and María were not credible; and (3) Restrepo failed to provide a
convincing reason for the discrepancies. While the BIA's decision
here did not expressly cite In re A-S-, its reasoning clearly
satisfied all three elements.
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First, as explained above, the IJ noted that not one of
the letters or affidavits submitted by others in support of
Restrepo's application mentioned his divorce from María. Thus,
even assuming that Restrepo's and María's testimony before the IJ
was internally consistent, the IJ concluded that this testimony
conflicted with other evidence on record and the BIA explicitly
alluded to the IJ's finding on this issue. As we have explained
supra, the IJ's determination on this issue was supported by
substantial evidence.
Second, although he does not do so directly, it would be
a nonstarter for Restrepo to argue that the discrepancies the IJ
cited do not "provide specific and cogent reasons" to support an
adverse credibility finding. In re A-S-, 21 I. & N. Dec. at 1109.
The discrepancies and gaps between testimony and record evidence on
which the IJ and the BIA focused went to the crucial issue of
whether Restrepo could satisfy the eligibility requirements to
receive cancellation of removal relief. As we have already
explained, substantial evidence supports a finding that these
discrepancies and gaps were significant enough to be indicative of
a lack of credibility. Cf. Juárez-López v. Gonzales, 235 Fed.
Appx. 361, 367 (7th Cir. 2007) ("Adverse credibility determinations
should not be based upon easily explained discrepancies or
perceived discrepancies.").
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Finally, Restrepo's claim that the IJ did not properly
consider his proffered explanations as to any discrepancies or
omissions is similarly unavailing. While Restrepo underscores that
his and María's testimony addressed, at least in part, the premises
upon which the IJ based her adverse credibility determination --
e.g., by noting that the couple's third child was conceived while
María was separated (even if not yet divorced) from Ríos -- it was
certainly reasonable for the IJ and the BIA to find these
explanations inadequate. Most importantly, we note that the IJ,
commensurate with her misgivings about Restrepo's marital history,
once continued proceedings to allow Restrepo to submit his divorce
records to the immigration court along with a letter from his
church outlining his family history. According to the IJ's
decision, Restrepo failed to comply with the immigration court's
request and did not attempt showing that the requested evidence was
unavailable. Cf. Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st
Cir. 2008) (in asylum case, noting "utter lack of corroboration,
easily obtainable were the petitioner's tale true, supports []
adverse credibility determination" (footnote omitted)). In its
decision, the BIA referenced Restrepo's failure to proffer the
materials the IJ requested, correctly adding that under INA §
240(c)(4)(B), if the trier of fact requests additional
corroborative evidence, such evidence "must be provided" unless it
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cannot be reasonably obtained. See 8 U.S.C. § 1229a(c)(4)(B)
(emphasis added).
III. Conclusion
For the foregoing reasons, Restrepo's petition for review
is denied.
Denied.
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