United States Court of Appeals
For the First Circuit
No. 06-2144
YOLANDA ECHEVARRÍA,
Petitioner,
v.
PETER D. KEISLER,* ACTING ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Valquiria C. Ribeiro on brief for petitioner.
Jennifer Levings, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, and Terri J. Scadron, Assistant Director, on
brief for respondent
October 4, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General Alberto
R. Gonzales as respondent.
BOUDIN, Chief Judge. Petitioner Yolanda Echevarria, a
national of the Dominican Republic, entered the United States
without permission on November 13, 1999. She married an American
citizen, Ricardo Echevarria, on March 16, 2001, and Ricardo filed
a visa petition (I-130) for her shortly thereafter, on April 25,
2001. Yolanda filed a corresponding form I-485 application to
adjust her status to permanent resident.
Under precedent governing such visas, it is not enough
that the marriage be formally valid; it must reflect a sincere
intention to establish a life together (as opposed to an attempt to
evade the immigration laws), and the applicant is expected to
provide evidence to support the claim and to remedy deficiencies in
proof.1 In this case, an immigration officer interviewed both
Ricardo and Yolanda and found their responses and documentary
evidence insufficient to establish the bona fides of the marriage.
In a detailed Notice of Intent to Deny dated November 7,
2001, the officer listed inconsistencies in the couple's responses,
gaps in documentary evidence and other facts adverse to the
application. The notice invited Ricardo to respond within eighteen
days to explain the inconsistencies and to submit additional
evidence to establish that the marriage met requirements. Ricardo
1
See Rodriguez v. INS, 204 F.3d 25, 27 (1st Cir. 2000); see
also Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975); Matter of
Phillis, 15 I. & N. Dec. 385, 386 (BIA 1975). See generally 8
C.F.R. §§ 204.1-.2.
-2-
neither responded to the letter nor exercised his right to appeal
the denial. 8 C.F.R. § 204.2(a)(3). Yolanda's application to
adjust her status was then denied.
On April 22, 2002, the Immigration and Naturalization
Service ("INS") began removal proceedings against Yolanda. 8
U.S.C. § 1182(a)(6)(A)(i) (2000). Ricardo then filed a second visa
petition but again he neither responded to the Notice of Intent to
Deny nor appealed the denial, which came on July 9, 2003. Yolanda
filed an appeal, but as she was not the visa applicant (but rather
the beneficiary) she had no standing to do so. 8 C.F.R. §
103.3(a)(1)(iii)(B).
The removal proceedings dragged on for several years.
Yolanda was granted continuances, first while her husband's second
I-130 visa petition was pending and then while waiting for two
consecutive labor certification applications (and a corresponding
I-140 employment-based visa petition) to be adjudicated.
Throughout she argued that she would be eligible to apply to adjust
her status to permanent resident pursuant to 8 U.S.C. § 1255(i) if
any of these visa petitions were approved. Ultimately, after a
hearing on March 15, 2005, an immigration judge ("IJ") found that
Yolanda was ineligible for adjustment of status.
This ruling rested pertinently on a determination that
Yolanda did not come within the terms of a grandfather clause that
is central to this appeal. Generally, aliens who illegally entered
-3-
the United States are not permitted to apply here for status
adjustments. 8 U.S.C. § 1255(a). However, under section 1255(i),
such aliens may apply if they were the beneficiaries of visa
petitions (or labor certification applications) filed before a
sunset date of April 30, 2001. Lasprilla v. Ashcroft, 365 F.3d 98,
99-100 (1st Cir. 2004).
Yolanda's first visa petition was filed by Ricardo on
April 25, 2001 (the second visa application and two labor
certificates were filed after the sunset date), but the regulations
stipulate that an alien does not qualify as the "beneficiary" of a
visa petition, and thus cannot be grandfathered, unless the
petition was "approvable when filed" before the deadline. 8 C.F.R.
§ 245.10(a)(1)(i)(A). "Approvable when filed" is defined as
"properly filed, meritorious in fact, and non-frivolous." Id. §
245.10(a)(3).
The IJ, in her decision on removability, determined that
the first visa application was not approvable when filed. Earlier
in the decision the IJ had described the immigration officer's
determinations in denying that application, specifically, that the
answers to questions about the marriage were vague, inconsistent or
at odds with a bona fide marriage and that the documentation
provided (e.g., joint bills, shared bank accounts) was insufficient
or unpersuasive. The IJ ordered voluntary departure.
-4-
On review, the Board of Immigration Appeals affirmed this
determination without reaching an alternative ground also relied on
by the IJ.2 Yolanda now petitions this court for review. The
principal ground urged on appeal is that the IJ and Board erred in
determining that the original visa application was not approvable.
The claim turns principally on how the statute and the Board's
regulations are to be read.
As already explained, an application is approvable when
filed if it is "properly filed, meritorious in fact, and non-
frivolous." 8 C.F.R. § 245.10(a)(3). Yolanda's first visa
application met the first requirement (it was timely and in proper
form) and seemingly met the third (there was some evidence of a
legitimate marriage). The remaining requirement is that it be
"meritorious in fact."
The history of the statute's grandfather clause is
illuminating. The clause aimed to protect those who had legitimate
visa applications on file before the more restrictive amendment
came into force excluding applications on behalf of those who
entered illegally. It was not the applicant's fault, after all,
that it might take time to process applications that had been filed
before the law changed.
2
The IJ's removal order rested as well on an independent
finding that the marriage had been entered into in an attempt to
deceive the immigration authorities, which would independently bar
a visa, see 8 U.S.C. § 1154(c); but the Board did not reach this
alternative ground and we do not address it.
-5-
Thus, the statute provided that a visa application need
not have been actually approved before the sunset of April 30,
2001, or even approved at all; in fact, grandfathering rights could
attach under the regulation even if the initial timely application
were later withdrawn or denied because of later changes in
circumstances (e.g., because the resident spouse died). 8 C.F.R.
§ 245.10(a)(3). But the visa application nevertheless needed to
have been "approvable" including "meritorious in fact"--and the
question now is what that means.
Yolanda argues that the immigration officer did not
affirmatively find that her marriage was pretense but only that the
evidence was insufficient to prove it to be real. In principle, an
insufficiency of evidence could be remedied by more evidence.
Therefore, she concludes, her original visa application was
potentially approvable when filed and she should now be entitled to
have the IJ make a new finding on a new record whether her marriage
was bona fide when entered into.3
But before the immigration officer made his
determination, Ricardo and Yolanda were interviewed and did submit
evidence; and the adverse ruling was founded on an evaluation of
3
Her alternative--and much broader--conclusion, that the
absence of a finding of fraud should automatically qualify her
initial petition as meritorious, simply does not follow: the
absence of a finding that a petition is fraudulent is not the same
as a finding that a petition is meritorious. A deduction on an
income tax form can be disallowed as failing on the merits even
though it is not dishonestly claimed.
-6-
the evidence after an opportunity, not taken by the spouses, to
satisfy identified gaps. In substance, there was a determination
on the merits and it was not appealed. Yolanda does not argue that
the officer erred on the record that was before him--nor is it
clear how she could now challenge that finding, the time for appeal
having long since expired. 8 C.F.R. § 1003.3(a)(2).
In some ultimate objective sense (sub species
aeternitatis), a marriage may have been bona fide even if all the
evidence at the time pointed in the other direction; even the most
affirmative finding to the contrary could, in light of new
evidence, prove to have been mistaken. But there is no reason to
think that the grandfathering provision was meant to give a second
bite at the apple to one who earlier had a full and fair
opportunity to prove that the marriage was bona fide.
The arguments against relitigation are substantial.
Evidence as to whether the marriage was or was not bona fide was
freshest at the application stage; a second chance was available to
mend gaps after receipt of the Notice of Intent to Deny; and timely
administrative review could have been pursued. Immigration cases
are already protracted. Given the stakes in removal cases, a fair
chance for Yolanda to present her case was fully warranted; two
chances on the same issue is a different matter.
-7-
Accordingly, we think that in general, possibly with rare
exceptions, a court should not require revisiting the original visa
determination, if one was made "on the merits," did not depend on
changed circumstances, and could have been effectively reviewed at
the time. Whether in the later removal proceeding the IJ or Board
could as a matter of grace choose to reexamine their earlier
decision is a different issue which is not presented in this case.
Thus, as we view the regulations, the IJ did not have to
conduct a brand new review on new evidence. But even if we are
mistaken, no basis for further proceedings was established here.
There is no developed argument in Yolanda's brief to show a tender
to the IJ of substantial new evidence that would likely alter the
result, let alone new evidence that was unavailable to the couple
at the time of the original decision by the immigration officer.
The IJ was provided a collection of evidentiary items and
allowed it to be submitted into the record because Yolanda had sent
the items to the Board in her futile attempt to appeal the denial
of the second visa application. Yolanda never explains the
significance of any of the items, which of them was new (and, if
so, why not originally provided to the immigration officer) or why
taken together they establish the bona fides of the marriage as of
April 2001.
-8-
Rather Yolanda's position in this court appears to be
that the IJ was under some automatic obligation to decide the bona
fides issue afresh on whatever record is now presented long after
the event and long after a contrary determination for which no
review was sought. We think that there is no such automatic
obligation. Even assuming that a court might order reexamination
on extreme facts--an issue we do not decide--this case would not be
a candidate.
Finally, Yolanda argues that the IJ was obligated to
grant yet another continuance to allow Yolanda to pursue her appeal
of the second visa denial; she says that a successful appeal would
prove that the original visa petition had in fact been meritorious.
Only Ricardo, as the visa applicant, had standing to challenge the
denial, 8 C.F.R. § 103.3(a)(1)(iii)(B); he did not, and the time
for him to do so had expired. Yolanda's appeal was therefore
destined to fail and there was no reason for the IJ to delay any
further.
The petition for review is denied.
-9-