IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2009
No. 08-60585 Charles R. Fulbruge III
Clerk
ESPERANZA ALVARADO DE RODRIGUEZ
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Esperanza Alvarado de Rodriguez (“Alvarado”) appeals the Board of
Immigration Appeals’ (“BIA”) decision, which overturned an Immigration
Judge’s order granting her a good-faith hardship waiver of the joint filing
requirement of section 216(c)(4)(A) of the Immigration and Nationality Act
(“INA”). Such a hardship waiver was required to remove the conditional nature
of Alvarado’s status, and the BIA’s denial of the waiver meant she would be
removed to Mexico. In her petition for review, Alvarado claims that (1) this
Court has jurisdiction to consider her appeal; (2) the BIA incorrectly reviewed
the Immigration Judge’s findings of fact de novo; (3) the BIA’s consideration of
No. 08-60585
a government-sponsored affidavit was improper; and (4) the BIA’s eventual
holding – that the marriage was not entered into in good faith – was erroneous.
Because the BIA applied the incorrect legal standard to conclude that the
marriage was not entered into in good faith, we REVERSE the order of the BIA
and REMAND for further proceedings not inconsistent with this opinion.1
I. Factual Background
Alvarado was a permanent U.S. resident on a conditional basis due to her
marriage to an American citizen, Melecio Villafranco. Ordinarily, removal of the
residency condition would require that the spouses file a joint petition. However,
Alvarado and Villafranco separated, and he was unwilling to file a joint petition;
in fact, he completed an affidavit requesting withdrawal of his alien relative
petition soon after their break-up. To avoid deportation to her native country of
Mexico, Alvarado was charged with establishing entitlement to a hardship
waiver to excuse compliance with the joint filing requirement. In order to
qualify for a hardship waiver under the “good faith” prong, Alvarado had to
prove that her marriage was entered into in good faith and that she was not at
fault in failing to meet the statutory condition. See 8 U.S.C. § 1186a(c)(4)(B).2
The central question considered by the Immigration Judge (and later, the BIA)
was whether Alvarado and Villafranco “intended to establish a life together at
the time they were married” – that is, whether, at the time of their union, they
married in good faith.
1
Once the correct legal standard is properly applied to the facts of this case, it appears
that the evidence would establish eligibility for a hardship waiver.
2
Under this section, “[t]he Attorney General, in the Attorney General’s discretion, may
remove the conditional basis of the permanent resident status for an alien . . . if the alien
demonstrates that – (B) the qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated . . . and the alien was not at fault in
failing to meet the requirements of paragraph (1) [requiring, among other things, a joint
petition].” Id.
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At a 2005 hearing before an Immigration Judge, Alvarado, her daughter,
and a co-worker testified, and she presented documentary evidence to satisfy her
evidentiary burden. Alvarado explained that in August of 1992, she fled to the
United States with two of her children to escape an abusive relationship in
Mexico. Alvarado initially moved in with her sister in Corpus Christi, Texas,
and was soon joined by her son. She met Villafranco in 1993 when both lived in
the same apartment complex. She became friends with Villafranco, and he
would often drive her to run errands and buy groceries. Alvarado would share
dinner with Villafranco. Villafranco assisted Alvarado with the purchase of her
house in 1994. Although Villafranco was approximately 30 years older than
Alvarado, she came to think of him as more than a friend.
When Villafranco proposed marriage in 1995, she did not hesitate to
accept. Although Alvarado and Villafranco were married on October 5, 1995,
Alvarado’s divorce from her first husband was not finalized until 1996. Her
status was adjusted from a non-immigrant visitor to a permanent resident on a
conditional basis on June 16, 1997 based upon her marriage to Villafranco.
During their marriage, Alvarado lived with Villafranco, they bought
groceries together, had meals together, and went to church together weekly.
They held themselves out to be, and considered themselves to be, husband and
wife. Alvarado testified that Villafranco moved in with her in 1995 and left her
house in 1998. Alvarado stated that she outwardly professed her love for
Villafranco and did indeed love him. Alvarado showed affection for Villafranco
publicly, holding his hand and kissing him. Initially, Alvarado felt affection
towards Villafranco. However, she contends that her feelings changed when
Villafranco began to drink heavily and acted inappropriately toward her
daughter and her daughter’s friend. Alvarado testified that she did not agree to
marry Villafranco for the purpose of obtaining immigration papers.
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The Government attempted to impeach Alvarado’s testimony, over
objection, with an affidavit executed by Villafranco. In that document,
Villafranco stated, among other things, that he did not begin living with
Alvarado until 1997 and that she told him upon their separation that she did not
love him. On cross-examination, Alvarado admitted that Villafranco slept in his
own bedroom while she slept in a bedroom with her daughter.
Catalina Chavez, a co-worker of Alvarado, testified that she often saw
Villafranco take Alvarado to and from work. Chavez also stated that Alvarado
had surgery in 1996 and that Villafranco accompanied Alvarado to the hospital
during this time. Chavez explained that she had observed Alvarado and
Villafranco hold hands and be affectionate with each other, and she considered
them to be married.
Gladys Enriquez, Alvarado’s daughter, testified that she recalled
Villafranco being a nice man who would drive her to school and drive her mother
to work. Enriquez stated that Villafranco assisted the family in fixing the house
and that Villafranco was always there. Enriquez also testified that Villafranco
was a drunk and acted inappropriately toward one of her friends. Enriquez did
not remember Alvarado showing physical affection towards Villafranco, but
suggested that such affectionate conduct would be out of character for her
mother. Enriquez was approximately eleven years old when Villafranco moved
out of the house.
Alvarado submitted several documents as exhibits, including: (1) a
declaration of marriage, dated October 5, 1995; (2) a divorce decree, dated
December 4, 1998; (3) seven affidavits from friends and co-workers attesting to
the bona fide nature of the marriage; (4) applications for life insurance which
reflect that Alvarado and Villafranco were designated cross-beneficiaries; (5)
Alvarado’s 1997 hospital records indicating a designation of Villafranco as
spouse and emergency contact, and documenting his conduct explaining medical
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procedures to his wife; (6) Internal Revenue Service receipts reflecting Alvarado
and Villafranco’s status as “married filing jointly”; (7) utility bills for Alvarado’s
home sent to Villafranco’s attention; (8) a 1995 school enrollment form for
Alvarado’s daughter naming Villafranco as emergency contact; (9) a record of a
cemetery plot purchased by Villafranco using Alvarado’s home address; (10) a
written affidavit by Alvarado; and (11) a letter from one of Alvarado’s daughters
discussing the marriage and its dissolution.
The Government did not present any testimony at the hearing but
submitted, ostensibly for impeachment purposes, the February 1998 affidavit
executed by Villafranco. There was no indication that Villafranco was
unavailable to testify.
On March 11, 2005, the IJ issued an oral decision granting Alvarado a
good faith waiver to the joint petition requirement. After summarizing the
evidence before him, the IJ concluded that Alvarado’s testimony was “candid,
specific, plausible, consistent with supporting documentation, internally
consistent, and unembellished.” The IJ found that the testimony of Alvarado,
Enriquez, and Chavez was credible and that Alvarado established that her
marriage to Villafranco was bona fide. The IJ observed that the only evidence
that cast doubt upon Villafranco and Alvarado’s good faith was the affidavit
executed by Villafranco. Accordingly, the IJ granted Alvarado’s petition to
remove the conditions on her residence.
The Government filed an appeal with the BIA. The Government argued
that, based on Alvarado’s testimony, the evidence showed that she did not intend
to establish a life together with Villafranco. The Government pointed to the
affidavit testimony that Alvarado and Villafranco slept in separate bedrooms
and that Villafranco lived with Alvarado for only one year. The Government also
argued that the circumstances surrounding the preparation of Alvarado’s
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No. 08-60585
immigration papers (specifically, that Alvarado’s son assisted her) were
suspicious.
The BIA sustained the appeal by order dated February 23, 2007,
concluding that Alvarado failed to establish that she entered into the marriage
in good faith. The BIA stated that the IJ did not give sufficient weight to the
affidavit executed by Villafranco. The BIA focused on the fact that both
Villafranco and Alvarado were married to other individuals when they married
each other and had to remarry after their respective divorces. Additionally, the
BIA concluded, contrary to the IJ’s factual finding, that the couple lived together
for only one year. The BIA stated that the couple “did very little together, other
than attend church and the husband driving the respondent to work.” The BIA
also explained that the evidence and affidavits did not support the conclusion
that the marriage “fell apart due to the husband’s drinking problem.”
Accordingly, the BIA found that Alvarado did not meet her burden and sustained
DHS’s appeal.
Alvarado filed a motion to reconsider, arguing that the BIA failed to
correctly apply the “clearly erroneous” standard of review required by 8 C.F.R.
§ 1003.1(d)(3)(I) and that the BIA’s consideration of Villafranco’s hearsay
affidavit violated due process. The BIA denied Alvarado’s motion to reconsider
by order dated July 9, 2007. It explained that, “[i]n giving [the affidavit] its
proper weight to impeach the respondents, we gave significantly less weight to
their testimony. Based on this and the many other factors discussed in our
previous decision, we continue to find that the respondents have failed to meet
their burden of proof.” Alvarado then filed a petition for review in this Court.
The Government filed a motion to remand to the BIA, conceding that the BIA’s
decisions indicated that the court improperly re-weighed the evidence. This
Court granted the motion to remand for the BIA to re-examine the facts using
the proper standard of review.
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On June 13, 2008, the BIA again sustained the DHS’s appeal. The BIA
stated that Alvarado had the burden of proving that she entered into her
marriage with Villafranco in good faith. The BIA referenced the decision of the
IJ and noted that the IJ found the testimony presented by Alvarado to be
credible. The BIA recited many of the facts found by the IJ and confirmed that
it had not determined the factual findings to be clearly erroneous. However, the
BIA concluded,
[A]pplying the facts as found by the Immigration Judge to the law,
we do not find that the respondent met her burden of establishing
that her marriage to Mr. Villafranco was entered into in good faith.
Even accepting the Immigration Judge’s favorable credibility
determination, we do not find that the testimony and evidence were
sufficiently compelling to meet the respondent’s burden of proving
that she and Mr. Villafranco intended to establish a life together,
especially in light of the adverse inference raised by the sworn
statement executed by the respondent’s former husband. As we
noted in our decision of February 23, 2007, the testimony of the
respondent herself calls into question the good faith nature of the
marriage.
The BIA noted that the couple did not date prior to the marriage, there was no
evidence that they were ever “romantically involved,” they did not celebrate their
wedding with family and friends, there was no evidence of shared celebrations,
holidays, or vacations, the couple did not share a bedroom, the age difference
was significant, and they resided together “for only 2 years and 4 months.” The
BIA concluded that the evidence showed that the marriage was simply one of
convenience between friends.
The BIA also held that the documentary evidence provided by Alvarado
was “insufficient to establish that the respondent intended to establish a life
with Mr. Villafranco[,]” because their assets were not substantially intermingled,
there was no evidence that Villafranco was made a co-owner of Alvarado’s home,
and the utility bills did not include both of their names. Thus, the BIA found
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that the marriage was not entered into in good faith. Alvarado filed a timely
petition for review.
II. Standard of Review
This Court lacks jurisdiction to review the discretionary decisions of the
BIA. See 8 U.S.C. § 1252(a)(2)(B)(ii). We review the factual findings of the BIA
under the substantial evidence standard, reversing only when the evidence
compels a contrary result. See Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th
Cir. 2007). We review questions of law de novo. Id.
III. Analysis
A. Jurisdiction
DHS claims that this Court has no jurisdiction to consider Alvarado’s
petition for review, because the BIA’s denial of the good faith waiver was a
discretionary decision statutorily reserved to the Attorney General and immune
from appellate scrutiny. However, the challenges raised by Alvarado constitute
questions of law and constitutional claims properly before this Court pursuant
to the REAL ID Act of 2005, notwithstanding the jurisdictional limitations
contained within the INA.
Section 1252(a)(2)(B)(ii) of the INA proscribes judicial review of “any . . .
decision or action of the Attorney General . . . the authority for which is specified
under this subchapter to be in the discretion of the Attorney General[.]” 3 Under
the INA, the granting of a hardship waiver for an individual is reserved to the
discretion of the Attorney General. See 8 U.S.C. § 1186a(c)(4); see also Assaad
v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). The Attorney General does not
3
This jurisdiction-stripping provision is part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), which was “aimed at protecting the
Executive’s discretion from the courts – indeed, that can fairly be said to be the theme of the
legislation.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999).
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have unfettered discretion; instead, such discretion is available only if the “alien
demonstrates that” the marriage was entered into in good faith.4
The REAL ID Act of 2005 clearly permits appellate jurisdiction over
Alvarado’s petition. That amendment to the INA clarified the scope of the
statute’s jurisdiction-stripping provisions by adding the following language to §
1252:
Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D). This Court has explained, “The REAL ID Act . . .
removes jurisdictional bars to direct review of questions of law in final removal,
deportation, and exclusion orders.” Rodriguez-Castro v. Gonzales, 427 F.3d 316,
319 (5th Cir. 2005); see also Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th
Cir. 2006) (noting that this Court has jurisdiction over petitions for review of
constitutional claims or questions of law). Although the REAL ID Act took effect
on May 11, 2005, this amendment applies retroactively to Alvarado’s petition for
review. See REAL ID Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231,
310 (2005) (making amendment containing § 1252(a)(2)(D) applicable “to cases
in which the final administrative order of removal, deportation, or exclusion was
issued before, on, or after the date of the enactment of this division”); see also
Rodriguez-Castro, 427 F.3d at 319 n.1 (observing that § 1252(a)(2)(D) applies
retroactively).
We agree with our sister circuits that § 1252(a)(2)(D) permits appellate
review of the legal issues raised by Alvarado. Indeed, under the REAL ID Act,
the “predicate legal question of whether the IJ properly applied the law to the
4
Other potential bases for a hardship waiver are spelled out in the statute, but they
are not at issue here, so we focus only on subsection (4)(B).
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No. 08-60585
facts in determining the alien’s eligibility for discretionary relief” is a question
of law properly raised in a petition for review. Nguyen v. Mukasey, 522 F.3d 853,
854-55 (8th Cir. 2008); Oei v. Attorney Gen. of the United States, No. 07-4561,
301 F. App’x 157, 158-59 (3d Cir. Dec. 1, 2008) (unpublished opinion) (finding
jurisdiction, because the question of whether the BIA used the wrong standard
in overturning the IJ’s factual findings was a question of law rather than fact).
Alvarado’s petition for review is properly before this Court. She raises
challenges to the standard of review applied by the BIA to the factual findings
of the IJ and contends that the BIA erred in finding her evidence legally
insufficient to establish good faith. She also presents a constitutional challenge
to the admission of the Villafranco affidavit. Neither the IJ nor the BIA made
the discretionary decision to deny Alvarado a good faith hardship waiver.
Instead, the BIA held that Alvarado was statutorily ineligible for a hardship
waiver because she failed as a matter of law to marshal sufficient evidence of
good faith. These are legal and constitutional issues unrelated to the discretion
reserved to the Attorney General. Accordingly, jurisdiction is proper.
B. Good Faith Determination
The BIA’s consideration of the IJ’s findings of fact and credibility
determinations is limited to a clear error review. Under 8 C.F.R. §
1003.1(d)(3)(I), the BIA cannot “engage in de novo review of findings of fact
determined by an immigration judge.” Instead, the BIA reviews those facts,
including credibility determinations, only to determine whether they are clearly
erroneous. Id. The BIA may not overturn an IJ’s factual findings “simply
because the Board would have weighed the evidence differently or decided the
facts differently had it been the factfinder.” Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,889
(Aug. 26, 2002) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985)). “Where there are two permissible views of the evidence, the factfinder’s
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choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.
Here, the BIA has obviously engaged in a de novo review of the IJ’s
findings of fact and credibility determinations. After twice faulting the IJ for
giving insufficient weight to the Villafranco affidavit and then independently re-
weighing the evidence to emphasize weaknesses in Alvarado’s presentation, the
BIA on remand recited the IJ’s factual findings at some length and then
purported to accept his credibility determinations. In lieu of finding clear error,
the BIA instead concluded that the testimony and evidence was not “sufficiently
compelling to meet the respondent’s burden of proving that she and Mr.
Villafranco intended to establish a life together, especially in light of the adverse
inference raised by the sworn statement executed by the respondent’s former
husband.” Correct application of the clear error standard could not have led to
the BIA’s conclusion that the evidence was legally insufficient to establish a good
faith marriage.
“Common sense as well as the weight of authority requires that we
determine whether the BIA applied the correct legal standard, not simply
whether it stated the correct legal standard.” Kabba v. Mukasey, 530 F.3d 1239,
1245 (10th Cir. 2008). Quite simply, the BIA is not entitled to state the correct
legal standard but actually apply an incorrect standard. See id.; see also Chen
v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 514-15 (2d Cir.
2006). The BIA may not re-weigh the evidence submitted and substitute its own
judgment for that of the IJ absent clear error. Id. at 1245-46; see also Chen 470
F.3d at 514-15 (“Although the BIA used the phrase ‘clearly erroneous’ in its
opinion, the review it conducted in fact was to independently assess Chen’s
credibility without giving deference to the findings of the IJ. This is de novo
review and constitutes legal error by the BIA[.]”). Here, the BIA did not find
clearly erroneous the factual findings or credibility determinations of the IJ, and
it adopted such findings as its own. However, it all but ignored the significant
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No. 08-60585
testimony and documentary evidence that was found by the IJ to be “candid,
specific, plausible, consistent with supporting documentation, internally
consistent, and unembellished.” The BIA instead relied upon a hearsay
document that was disregarded by the IJ and does not necessarily lead to an
“adverse inference” about the nature of Alvarado’s marriage.5 It is clear that the
BIA did not accept most of the findings of fact; otherwise, it could not have
reached the conclusion that it did. We therefore hold that the BIA erred as a
matter of law by misapplying the appropriate standard of review.
IV. Conclusion
Because the BIA incorrectly applied a de novo review to deny Alvarado’s
good faith waiver, we REVERSE its June 13, 2008 order and REMAND this case
for proceedings consistent with this opinion.
5
We need not reach the issue of whether the affidavit’s admission was a constitutional
violation, because the IJ did not rely upon it in its findings of fact or credibility
determinations. However, we do observe that the contents of the affidavit may lend equal
credence to Alvarado’s contention that she married in good faith.
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OWEN, Circuit Judge, concurring:
I agree that the Board of Immigration Appeals (BIA) failed to apply the
“clearly erroneous” standard set forth in 8 C.F.R. § 1003.1(d)(3)(i). I accordingly
concur in much of the panel’s opinion.
I do not, however, join in the conclusion expressed in footnote one of that
opinion that “it appears that the evidence would establish eligibility for a
hardship waiver.” Whether a marriage was in good faith is generally a question
of fact that is to be resolved not by this court but by the administrative process.1
It is possible that on remand, the BIA may apply the correct standard of review
and either reach the same conclusion that it has thus far reached or properly
remand to the IJ for further proceedings.2 Because it is not within the province
of this court to pre-ordain the BIA’s conclusion on remand, I do not join in the
panel majority’s statements that “[c]orrect application of the clear error standard
could not have led to the BIA’s conclusion that the evidence was legally
insufficient to establish a good faith marriage,” and “[i]t is clear that the BIA did
not accept most of the findings of fact; otherwise, it could not have reached the
conclusion that it did.” There is at least some evidence that the marriage at
issue was not in good faith. While the weight of the evidence in the present
record may lead to an opposite conclusion, this court does not have jurisdiction
1
See Ayanbadejo v. Chertoff, 517 F.3d 273, 277 n.11 (5th Cir. 2008) (“Although the
Ayanbadejos argue that the USCIS’s basis for refusing to adjust John’s status was a legal
conclusion that a non-viable marriage precluded the change-in-status John requested, the
USCIS’s predicate determination of whether the Ayanbadejos had a bona fide marriage was
a question of fact, not law, and therefore does not qualify for the § 1252(a)(2)(D) exception to
the § 1252(a)(2)(B) jurisdiction stripping provision.”).
2
See Ramirez-Peyro v. Gonzales, 477 F.3d 637, 641 (8th Cir. 2007) (“Although we
conclude that the Board did not appear to apply the proper standard of review and engaged
in its own factfinding, we nevertheless decline Ramirez’s invitation to engage in our own
analysis of the facts and their implication for his claim. . . . The Board should be given the
opportunity to discharge its statutory duty to review the IJ’s findings for clear error and
remand to the IJ for further proceedings if appropriate.”).
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to make essentially a factual determination that the marriage was in good faith.
I therefore concur in the judgment only.
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