United States Court of Appeals
For the First Circuit
No. 05-1971
DANIELA COELHO; JOAO NETO,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
Respondent.
ON PETITION FOR REVIEW OF A DECISION
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Christopher W. Drinan, with whom Law Office of John K. Dvorak,
P.C. was on brief for petitioners.
Janet A. Bradley, Trial Attorney, Civil Division, U.S.
Department of Justice, with whom Linda S. Wernery, Assistant
Director, Civil Division, U.S. Department of Justice, and Peter D.
Keisler, Assistant Attorney General, were on brief for respondent.
July 6, 2006
LIPEZ, Circuit Judge. Daniela Coelho and Joao Neto,
natives and citizens of Brazil, seek review of the Board of
Immigration Appeals ("BIA") decision that Neto was ineligible for
adjustment of status. The Immigration Judge ("IJ") had found that
Neto was ineligible for adjustment of status because he had
submitted an earlier application for adjustment of status based on
a fraudulent marriage, in violation of the Immigration and
Nationality Act ("INA") § 204(c), 8 U.S.C. § 1154(c). Although it
adopted the IJ's factual findings, the BIA relied on different
reasoning to reach the conclusion that Neto was ineligible for
adjustment of status.1 Specifically, the BIA concluded that he was
1
"Adjustment of Status" is defined in 8 U.S.C. § 1255 as
follows:
[t]he status of an alien who was inspected and admitted
or paroled into the United States . . . may be adjusted
by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if (1) the
alien makes an application for such adjustment, (2) the
alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence,
and (3) an immigrant visa is immediately available to him
at the time his application is filed.
The Department of Homeland Security defines "adjustment of status"
in layman's terms as follows: "Adjustment to Immigrant Status -
Procedure allowing certain aliens already in the United States to
apply for immigrant status. Aliens admitted to the United States
in a nonimmigrant, refugee, or parolee category may have their
status changed to that of lawful permanent resident if they are
eligible to receive an immigrant visa and one is immediately
available." U.S. Citizenship and Immigration Services, Glossary &
Acronyms, http://www.uscis.gov/graphics/glossary.htm (last visited
June 19, 2006).
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inadmissible2 because his earlier application constituted a
fraudulent attempt to gain an immigration benefit, in violation of
INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). Neto's
inadmissibility made him ineligible for adjustment of status.3 The
BIA also found that Neto was ineligible for a waiver of this
inadmissibility under INA § 212(i), 8 U.S.C. § 1182(i), because he
did not have a qualifying relative. Agreeing with the reasoning of
the BIA, we deny the petition for review.
I.
On or about April 7, 2000, the then Immigration and
Naturalization Service ("INS")4 commenced removal proceedings
against Neto by way of a Notice to Appear. The notice charged two
separate bases of removal: (1) as an immigrant who at the time of
2
"Admission", "admissible", "admissibility", "inadmissible",
and "inadmissibility" are used to refer to an individual's ability
to enter the United States lawfully. See generally, U.S.
Citizenship and Immigration Services, Glossary & Acronyms,
http://www.uscis.gov/graphics/glossary.htm (last visited June 19,
2006). However, these terms and concepts are also applied to
individuals already physically present in the United States, such
as the petitioners here.
3
See supra note 1. A requirement for adjustment of status
under 8 U.S.C. § 1255(a) is that an alien be "admissible to the
United States for permanent residence."
4
On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security, pursuant to
§§ 441 and 471 of the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135.
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adjustment of status was inadmissible by fraud or by willfully
misrepresenting a material fact, pursuant to INA § 237(a)(1)(A), 8
U.S.C. § 1227(a)(1)(A), and INA § 212(a)(6)(C)(i), 8 U.S.C. §
1182(a)(6)(C)(i);5 and (2) for remaining in the United States
longer than permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B). Petitioners,6 through counsel, appeared before an
IJ and conceded removability under INA § 237(a)(1)(B). While these
removal proceedings were pending, Neto renewed an earlier
application for adjustment of status in order to avoid removal,
and, in the alternative, applied for voluntary departure.7
5
8 U.S.C. § 1227(a)(1)(A), entitled "Inadmissible aliens",
states: "[a]ny alien who at the time of entry or adjustment of
status was within one or more of the classes of aliens inadmissible
by the law existing at such time is deportable." An alien who came
within the ambit of INA § 212(a)(6)(C)(i) would be within one of
the "classes of aliens inadmissible by the [existing] law", which
is why, for removability charges, the Notice to Appear listed both
statutory provisions.
6
Coelho, Neto's wife, applied for adjustment of status
derivatively through Neto's application, and her case was
consolidated with his case.
7
To enhance understanding of the somewhat convoluted
procedural history of this case, we note that there are two
discrete applications for adjustment of status discussed in this
opinion. The first application for adjustment of status occurred
in 1995 when Neto, or someone on his behalf, filed an I-130
"Petition for Alien Relative" and an accompanying I-485
"Application to Register Permanent Residence or Adjust Status"
(hereinafter, the "I-130/I-485 petition"). The I-130/I-485
petition asserted that Neto was eligible for adjustment of status
because he was married to a United States citizen. (An individual
applying for adjustment of status typically needs a "sponsor", be
it a relative, such as a spouse, or an employer.)
The second application for adjustment of status was filed in
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A. Testimony and Proceedings before the Immigration Judge
Petitioners' removal proceedings spanned a number of
hearings, before a number of different IJs, over a period of nearly
four years. Early in the proceedings, the government submitted,
and the IJ admitted into evidence, a letter from the District
Director for INS, dated March 21, 2000, entitled "Denial of
Application for Permanent Residence". The letter noted that
Bertucci's had filed an I-140 "Immigrant Petition for Alien Worker"
in late February 1998 on Neto's behalf. This I-140 petition was
approved in early March 1998. To complete the adjustment of status
process, Neto filed an I-485 "Application to Register Permanent
Residence or Adjust Status" in May 1998. As a part of that
process, the INS interviewed Neto on December 13, 1999. The letter
indicated that because of facts gleaned from this 1999 interview --
specifically, the events surrounding the earlier application for
adjustment of status that Neto had submitted in 1995 -- the I-140
petition was being revoked, and the I-485 petition was being
denied.
1998 when Bertucci's, a restaurant chain and Neto's employer, filed
on his behalf an I-140 "Immigrant Petition for Alien Worker". The
I-140 petition asserted that Neto was eligible for adjustment of
status given his employment at Bertucci's. As before, Neto filed
an I-485 petition to accompany the I-140 petition. It is this
second I-485 petition for adjustment of status that Neto renews
during the removal proceedings (hereinafter, the "I-140/I-485
petition").
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In 1995, Neto (or someone on his behalf) had submitted an
I-130/I-485 petition ("Petition for Alien Relative") to adjust his
status on the basis of marriage to a United States citizen, one
Debbie Russo. This application for adjustment of status had been
denied in February 1995, pursuant to INA § 212(a)(6)(C), the
provision establishing inadmissibility by reason of fraud, because
the marriage was apparently fraudulent. Once the INS realized that
this I-130/I-485 petition had earlier been denied, the INS revoked
the I-140 petition it had earlier approved, and denied the pending
I-485 petition for adjustment of status.
In a hearing on May 1, 2002, the government asserted that
Neto could not now challenge the INS's denial of his 1995 I-130/I-
485 petition, the grounds for his removal pursuant to INA
§§ 237(a)(1)(A) and 212(a)(6)(C)(i). However, the IJ learned
during this hearing that the INS had never informed Neto of the
grounds for denying the I-130/I-485 petition, i.e., the alleged
1995 marriage fraud, until the denial of his 1998 I-140/I-485
petition in the District Director's March 21, 2000 letter. The IJ
decided to allow Neto to respond to the grounds for the I-130/I-485
petition denial because of this oversight. In "that way . . . we
have the whole fraud thing flushed out if this case ultimately goes
up to the Board [BIA] on the whole issue of fraud." Additionally,
in regard to Neto's renewed application for adjustment of status,
the IJ wanted to take testimony from Neto to decide whether INA
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§ 204(c), the "marriage fraud" statute barring eligibility for
adjustment of status, would apply.
Neto provided his rebuttal testimony in an evidentiary
hearing before the IJ on January 13, 2004. Neto averred that he
arrived in the United States from Brazil in April 1992 as a B-2
visitor ("Temporary Visitor for Pleasure"). Coelho came to the
United States from Brazil in January 1993 with their two children,
also as B-2 visitors. Neto married Coelho in November 1995. Neto
stated that shortly after arriving in the United States, he
completed a form and obtained a Social Security number, even though
as a B-2 visitor he was ineligible to receive a Social Security
number. Neto also testified that, using this number, he secured
employment at Bertucci's, even though he knew he was not eligible
to work in the United States. Neto stated that except for a brief
period of time, he has remained employed by Bertucci's during his
residence in the United States.
In order to rebut the March 21, 2000 letter describing
his earlier fraud, Neto testified that he was informed in 1995 by
a coworker that an "amnesty" program had become available, and that
through this program that coworker had been able to secure a work
permit from the INS. The coworker allegedly gave Neto a telephone
number of a person he described to Neto as an attorney, known only
to Neto as "Bianca". Neto claimed that he contacted "Bianca", who
informed him that she would fill out the necessary INS forms and
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obtain a work permit for him pursuant to the purported amnesty
program for $3,000 cash. Shortly thereafter, according to Neto, he
met with "Bianca", paid her the fee, and signed several blank INS
forms. Neto claimed that he was tricked by "Bianca", that the
money had been stolen from him, and that he did not know that
"Bianca" had involved him in any marriage fraud.
B. The decisions of the Immigration Judge and the BIA
On January 13, 2004, the IJ entered an oral decision
finding Petitioners removable as charged -- for inadmissibility by
fraud under INA §§ 237(a)(1)(A) and 212(a)(6)(C)(i) for Neto's
actions in 1995, and for overstaying in the United States under INA
§ 237(a)(1)(B). The IJ also denied Petitioners' renewed
application for adjustment of status (the I-140/I-485 petition).
Rather than addressing the possibility of waiver of inadmissibility
-- and, therefore, "indirectly" denying Neto's renewed petition for
adjustment of status -- the IJ decided to address that petition
directly. Rejecting Neto's testimony that he had no knowledge that
he was involved in a fraudulent scheme with the assistance of
"Bianca", the IJ concluded that Neto had "sought to be accorded
status as the spouse of a citizen of the United States fraudulently
for purposes of evading the Immigration laws" in violation of INA
§ 204(c), 8 U.S.C. § 1154(c).8 That violation precluded any
8
Section 204(c) provides, in relevant part, that:
no petition [for adjustment of status] shall be approved
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possibility of relief through the renewed I-140/I-485 petition for
adjustment of status.9
Petitioners timely appealed the IJ's decision to the BIA
on Neto's I-140/I-485 petition only. Petitioners did not appeal
the IJ's ruling on either ground of removability. On June 2, 2005,
the BIA dismissed Petitioners' appeal. Rather than finding him
directly ineligible for adjustment of status under § 204(c) -- the
"marriage fraud" statute relied on by the IJ -- the BIA undertook
an alternate analysis to address Neto's petition for adjustment of
status. Under 8 U.S.C. § 1255, an alien must be admissible to be
granted adjustment of status. See supra note 1. The BIA upheld
the IJ's conclusion, underlying the IJ's § 237(a)(1)(A)
removability decision, that Neto was inadmissible under INA
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i)10 because his actions
if (1) the alien has previously been accorded, or has
sought to be accorded an immediate relative or preference
status as the spouse of a citizen of the United States or
the spouse of an alien lawfully admitted for permanent
residence, by reason of a marriage determined by the
Attorney General to have been entered into for the
purpose of evading the immigration laws, or (2) the
Attorney General has determined that the alien has
attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws.
9
Section 204(c) directly nullifies any petition for
adjustment of status made by an individual who has committed
marriage fraud. This ineligibility cannot be waived, unlike
certain types of inadmissibility.
10
Section 212(a)(6)(C)(i) states:
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surrounding the I-130/I-485 petition filed in 1995 constituted
involvement in a fraudulent scheme to obtain an immigration
benefit. The BIA then addressed whether Neto was eligible for a
waiver of his § 212(a)(6)(C)(i) inadmissibility, without which Neto
would be statutorily precluded from petitioning for adjustment of
status.
Section 212(i), 8 U.S.C. § 1182(i), provides for waivers
of inadmissibility based on INA § 212(a)(6)(C)(i). Section 212(i)
states, in relevant part, that the application of § 212(a)(6)(C)(i)
may be waived:
in the case of an immigrant who is the spouse, son, or
daughter of a United States citizen or of an alien
lawfully admitted for permanent residence if it is
established to the satisfaction of the Attorney General
that the refusal of admission to the United States of
such immigrant alien would result in extreme hardship to
the citizen or lawfully resident spouse or parent of such
an alien or . . . the alien demonstrates extreme hardship
to the alien or the alien's United States citizen, lawful
permanent resident, or qualified alien parent or child.
Because Neto lacked a qualifying relative, he was not eligible for
a waiver of this ground of inadmissibility. As a result, the BIA
determined that he was ineligible for adjustment of status because
of his inadmissibility, and the appeal of the IJ's denial of his I-
140/I-485 petition was denied. The BIA also noted that it would
Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure
or has procured) a visa, other documentation, or
admission into the United States or other benefit
provided under this chapter is inadmissible.
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deny adjustment of status as a matter of discretion even if Neto
were eligible.
II.
"When the BIA summarily affirms, this court reviews the
IJ's decision as if it were the decision of the BIA." Harutyunyan
v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2006). Here, the BIA
summarily adopted the IJ's factual findings, but reached a
different legal conclusion based on those findings. Therefore, we
review the IJ's factual findings, as if they were the BIA's, for
substantial evidence. Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120,
123 (1st Cir. 2005). To the extent there are issues of law, we
decide those de novo, Tobeth-Tangang v. Gonzales, 440 F.3d 537,
539 (1st Cir. 2006), but to the extent the BIA's decision on
alternate grounds rests on the evidence we apply the same
substantial evidence standard of review.
While § 204(c) directly precludes eligibility for
adjustment of status for the specific act of taking part in a
fraudulent marriage, or attempting or conspiring to do so,
§ 212(a)(6)(C)(i) denies admissibility -- "indirectly" leading to
a denial of adjustment of status -- for taking part in any
fraudulent scheme to obtain an immigration benefit. Although
§ 212(a)(6)(C)(i) is more general than § 204(c), it permits waivers
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of the inadmissibility it imposes if certain qualifications are
met.
Petitioners focus their appeal on INA § 204(c), the
"marriage fraud" statute, on which the IJ based his decision
denying Petitioners' application for adjustment of status.
Petitioners fail to address in any way Neto's inadmissibility under
INA § 212(a)(6)(C)(i) as it relates to his petition for adjustment
of status, or the denial of a waiver of his inadmissibility under
INA § 212(i). Based on this inadmissibility under
§ 212(a)(6)(C)(i) and the lack of a § 212(i) waiver, the BIA
affirmed the IJ's denial of adjustment of status.
Petitioners do not attempt to explain why the BIA erred
in finding Neto inadmissible under § 212(a)(6)(C)(i) or in
concluding that he could not obtain a waiver of inadmissibility
under § 212(i). The government asserts that, having failed to
brief any argument on § 212(a)(6)(C)(i) or the § 212(i) waiver
issue, Petitioners have waived any argument on these dispositive
issues. We agree. However, to avoid any suggestion that the
outcome of this appeal depends solely on omitted arguments, we
address briefly the BIA's ruling pursuant to § 212(a)(6)(C)(i) and
§ 212(i), as the government did in its brief.
Based on the factual findings it adopted from the IJ, the
BIA concluded that Neto had been involved in a fraudulent scheme to
obtain an immigration benefit in 1995 (the I-130/I-485 petition),
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rendering him inadmissible pursuant to § 212(a)(6)(C)(i). This
conclusion was supported by substantial evidence. As a result,
Neto had to apply for a waiver of this type of inadmissibility
under INA § 212(i) in conjunction with his renewed I-140/I-485
petition. To be eligible for § 212(i)'s waiver of inadmissibility,
an applicant must demonstrate that he or she "is the spouse, son,
or daughter of a United States citizen or of an alien lawfully
admitted for permanent status." The BIA concluded correctly that
Neto was not eligible for the § 212(i) waiver because he was not
able to show that he had a qualifying relative. Therefore, he was
ineligible for adjustment of status, and the BIA properly dismissed
his appeal.
The petition for review is denied.
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