Urena-Tavares v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

5-7-2004

Urena-Tavares v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1013

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PRECEDENTIAL Peter D. Keisler

Assistant Attorney General

Civil Division

UNITED STATES COURT OF Jeffrey S. Bucholtz (Argued)

APPEALS FOR THE THIRD CIRCUIT Deputy Assistant Attorney General

Civil Division

David V. Bernal

No. 03-1013 Assistant Director

Office of Immigration Litigation

Russell J.E. Verby

DANIEL URENA-TAVAREZ, Trial Attorney

Office of Immigration Litigation

Petitioner U.S. Department of Justice

Washington, D.C. 20044

v.

Attorneys for Respondent

JOHN ASHCROFT, Attorney General

of the United States,

OPINION OF THE COURT

Respondent

SLOVITER, Circuit Judge.

Petition for Review of an Order In this Petition for Review from a

of the Board of Immigration Appeals final order of removal entered by the

(A44-445-342) Board of Immigration Appeals (BIA) the

Pe titione r, D a n i e l U r e n a -Tavare z

(Tavarez),1 argues that the decision of the

Argued January 15, 2004

Before: SLOVITER, RENDELL, and 1

Tavarez’s name is spelled

ALDISERT, Circuit Judges differently throughout the record and the

briefs. He is referred to as “Tavares” in

(Filed May 7, 2004) the caption on all documents in the

Administrative Record, A.R. at 2; as

“Tavarez” on the title page of the

Steven Vosbikian (Argued) Petitioner’s Brief but as “Tavares”

Vosbikian and Grady throughout, Pet’r Br. at 2; and as

Cherry Hill, NJ 08034 “Tavarez” in the Government’s Brief,

Gov’t Br. at 2. Because he signed and

Attorney for Petitioner printed his name as “Tavarez,” A.R. at

341, we will refer to him herein as

Immigration Judge (IJ) was not based on dating her for about six or seven months.

adequate findings of fact and that the BIA Marriage of an alien to a United States

did not properly evaluate the IJ’s findings citizen entitles an alien to obtain

against himself and his two minor conditional permanent resident status,

children. In considering the arguments, Immigration and Nationality Act (INA) §

we find ourselves faced with a more 216(a)(1), 8 U.S.C. § 1186a(a)(1), and

fundamental and more generally applicable Tavarez obtained such status on January 8,

question – one going to the statutory 1994 pursuant to an application filed by

limitation on our review of matters Pineiro.3

committed to the Attorney General’s

Under the INA, the conditions on

discretion.

such status can be removed if “the alien

I. spouse and the petitioning spouse (if not

deceased) jointly . . . submit to the

FACTS AND PROCEDURAL

Attorney General . . . a petition which

BACKGROUND

requests the removal of such conditional

Petitioner is a 61-year old native basis . . . .” INA § 216(c)(1)(A), 8 U.S.C.

and citizen of the Dominican Republic, § 1186a(c)(1)(A). 4 Pursuant thereto,

and his two children, Danny Zefar Tavarez and Pineiro filed a joint

Tavarez, age 15, and Daniela Zefar application on December 1, 1995 to have

Tavarez, age 14, are also natives and the conditions on Tavarez’s permanent

citizens of the Dominican Republic. It is residence status removed, and an

unclear from the record when and in what immigration officer from the then-

fashion Tavarez entered the United States, Immigration and Naturalization Service

but on September 3, 1992, he married (INS) scheduled the interview for

Eladia Pineiro,2 a citizen of the United

States, in Camden, New Jersey, after

“Tavarez.”

3

The Government concedes that

2

The Petitioner’s Reply Brief refers the initial application, which is not part

to her as “Eladia Lopez,” Pet. Reply Br. of the Administrative Record, was filed

at 6; the Government’s Brief refers to her by Pineiro. Gov’t Br. at 6.

as “Elidia Pineiro,” Gov’t Br. at 6; and

4

the Administrative Record refers to her INA statutes will be cited both to

both as Eladia Pineiro” and “Elidia their codifications in the INA and in Title

Pineiro,” A.R. at 336. Because her 8 of the United States Code the first time

signature appears to be “Eladia Pineiro,” they are referenced in this opinion.

A.R. at 337, we will refer to her as Subsequent citations will be to Title 8 of

“Eladia Pineiro” or as “Pineiro.” the United States Code.

2

November 19, 1998.5 Shortly before the anything.” A.R. at 134 (testimony of

interview with the immigration officer, witness Carmen Sanchez). In the car ride

Tavarez and Pineiro quarreled over which home, when Pineiro realized that Tavarez

of them was responsible for payment of would be deported, “she started crying and

Pineiro’s share of the income taxes. then hugged him and said, you know,

Tavarez left the room to use the men’s sorry, I didn’t mean to do that. That’s not

room. Pineiro was called into the what I wanted to do, I just wanted to be

interview alone and told the immigration out of the problem so I didn’t have to, you

officer that although she did not want to know, pay the taxes . . . .” A.R. at 135-136

harm Tavarez, “she didn’t live with (testimony of witness Carmen Sanchez).

[Tavarez] and she was a friend.” A.R. at The INS District Director denied

134 (testimony of witness Carmen Tavarez’s application to remove the

Sanchez). The immigration officer condition on his permanent resident status;

reassured her by stating that she was not thus his conditional status was deemed to

harming him. Pineiro then signed a sworn have expired on January 8, 1996.

statement before the immigration officer,

Thereafter, the INS began

apparently prepared by the officer, stating

proceedings to remove Tavarez and his

that she and Tavarez never lived together

children by filing a Notice to Appear,

as a married couple and that they did not

charging that his status as a conditional

consummate the marriage. She also stated,

permanent resident was terminated

“I felt pity on him so I married him. I only

pursuant to 8 U.S.C. § 1186a, and that he

married her [sic] so she [sic] could obtain

obtained his immigrant status by fraud or

her [sic] legal permanent residence.” A.R.

willful misrepresentation of a material

at 337.

fact. The removal proceedings were

When Tavarez came into the assigned to an IJ.

interview room, the immigration officer

It was incontestable that Pineiro had

informed him that he was no longer

w i th d ra w n h e r s u p po r t , t h e r e by

eligible for permanent resident adjustment

eliminating any possibility of change of

status because his wife withdrew the

Tavarez’s status on the basis of a joint

petition. Tavarez “looked at [his wife] and

applic ation. Tav arez th en file d

said, what you trying to do? You crazy.

applications for a waiver of the obligation

Why you doing this? And all [Pineiro] did

to file a joint application. Under the INA,

was put her head down and didn’t answer

the Attorney General may waive the

obligation of a joint filing requirement for

5 an alien and his spouse if (1) the removal

The testimony given before the

would result in extreme hardship, (2) the

immigration officer is not in the

marriage terminated but was entered into

Administrative Record, but was reported

in good faith, or (3) the marriage was

to the IJ by witnesses at the two hearings

entered into in good faith but that the

held by him.

3

citizen spouse either battered or subjected Tavarez’s house, but stated that they were

the alien spouse to extreme cruelty. INA all from the same neighborhood and that

§§ 216(c)(4)(A)-(C), 8 U.S .C. §§ she “[saw] them all the time together.”

1186a(c)(4)(A)-(C). Tavarez based his A.R. at 148. The IJ characterized Carmen

application on all three statutory Sanchez as a “rather compelling” and

exceptions. “honest witness” in whose testimony he

placed “a great deal of credence.” A.R. at

Sometime thereafter, Pineiro

40. The other witness for Tavarez was

divorced Tavarez. The IJ summarily

Danny Tavarez, Tavarez’s son, who

denied the waivers based on extreme

moved in with the couple in August 1997

hardship and battered spouse, stating that

after leaving the Dominican Republic, and

there was no or almost no evidence for

who testified that Pineiro prepared his

either. The IJ then considered the

meals, picked out his school clothes, and

evidence from the hearing before him and

taught him how to do chores. A.R. at 262.

devoted a significant amount of his

The IJ found this testimony to “be worthy

decision to discussing the issue of whether

of some degree of belief.” A.R. at 40.

the marriage was entered into in good

faith. A waiver under INA § 216(c)(4)(B), In addition, Tavarez testified as did

8 U.S.C. § 1186a(c)(4)(B), permits his daughter. The final witness, Miguel

removal of the conditions on an alien’s Espinal, a friend who attended the

permanent resident status without wedding, testified he would see the couple

requiring his spouse to petition jointly for together, took them to the bank and

such removal if “the qualifying marriage shopping, and cooked with them at their

was entered into in good faith by the alien home. The IJ also considered Pineiro’s

spouse, but the qualifying marriage has sworn statement in reaching his decision

been terminated (other than through the that the marriage was not undertaken in

death of the spouse . . . ).” Id. good faith. Because the IJ concluded that

“this is a case of a friendship, of a

The witnesses before the IJ

relationship of some sort but not a

included Carmen Sanchez, who assisted

marriage,” he denied the application for a

Tavarez and Pineiro in the preparation of

waiver of the joint filing requirement.

immigration documents, tax filings, and in

A.R. at 43. The IJ ruled that Tavarez is

translation at the immigration interview.

removable under section 237(a)(1)(D)(i) of

At the December 7, 1999 hearing before

the INA, 8 U.S.C. § 1227(a)(1)(D)(i),

the IJ, Sanchez testified that in Tavarez’s

because his status as a conditional

bathroom absence while waiting for the

permanent resident was terminated.

immigration officer’s hearing, Pineiro told

Tavarez appealed to the BIA, which

her that unless Tavarez paid her share of

affirmed the decision of the IJ, concluding,

the taxes, she would “drop” his

“Although [Tavarez] submitted evidence

immigration case. A.R. at 132. Sanchez

and testimony that his marriage was in

admitted that she never went to the

4

‘good faith,’ in light of his former wife’s This standard reinforces “the presumption

statement, we defer to the Immigration favoring judicial review of administrative

Judge’ [sic] finding in this case.” A.R. at action.” Block v. Cmty. Nutrition Inst.,

3. Tavarez then filed the pending Petition 467 U.S. 340, 349 (1984). Where

for Review. congressional intent to preclude judicial

review is “fairly discernible” in the detail

II.

of the particular legislative scheme, this

DISCUSSION presumption favoring judicial review does

not apply. Id. at 351; see also Ismailov v.

A. 8 U.S.C. § 1252(a)(2)(B)(ii)

Reno, 263 F.3d 851, 854-55 (8th Cir.

Shortly before oral argument before 2001).

this court, the Government sent the court a

The jurisdictional statute in

letter, pursuant to Federal Rule of

question states:

Appellate Procedure 28(j), stating that

“[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii), Notwithstanding any other

this Court lacks jurisdiction to review [the provision of law, no court

denial of the waiver], because [8 U.S.C.] § shall have jurisdiction to

1186a(c)(4) confers to the Attorney review . . . any other

General’s ‘sole discretion ’ the decision or action of the

determination whether petitioner presented A t t o r n e y G e ne ral th e

evidence of sufficient credibility and authority for which is

weight to satisfy that provision.” 28(j) s p e c i f ie d u n d e r t h is

Letter from the Government, to Office of subchapter to be in the

the Clerk, at 2 (Jan. 13, 2004). We must discretion of the Attorney

first consider this issue of jurisdiction, as General, other than the

it “is axiomatic that this court has a special granting of relief under

obligation to satisfy itself of its own section 1158(a)[, which

jurisdiction. . . .” United States v. Touby, governs asylum,] of this

909 F.2d 759, 763 (3d Cir. 1990) (internal title.6

quotation and citation omitted). We

review jurisdictional questions de novo.

See Luu-Le v. INS, 224 F.3d 911, 914 (9th 6

We address in this opinion the

Cir. 2000).

question of whether we can review

The Supreme Court has held that decisions under 8 U.S.C. § 1186a(c)(4)

only a showing of “clear and convincing “regarding discretionary relief by the

evidence” is sufficient to support a finding Attorney General and his designees,

that Congress intended to preclude judicial which includes, inter alia, IJ, the BIA,

review of an administrative action. Bd. of INS District Directors, and INS Regional

Governors of the Fed. Reserve Sys. v. Commissioners.” Montero-Martinez v.

MCorp Fin., Inc., 502 U.S. 32, 44 (1991). Ashcroft, 277 F.3d 1137, 1140 n.1 (9th

5

8 U.S.C. § 1252(a)(2)(B). removal orders against criminal aliens); §

1252(b)(4)(D) (limiting review of asylum

The language “this subchapter” in

determinations for resident aliens),” Reno

the foregoing provision refers to

v. Am.-Arab Anti-Discrimination Comm.,

Subchapter II in Chapter 12 of Title 8 of

525 U.S. 471, 486-87 (1999) (discussing

the United States Code, and includes

the scope of 8 U.S.C. § 1252(g)). 7

section 1186a, the provision at issue here

that governs conditional permanent The scope of section

resident status based on marriage to a 1252(a)(2)(B)(ii) has been the subject of

United States citizen. some disagreement among the courts of

appeals. Section 1252 is captioned

Congressional intent to preclude

“Judicial review of orders of removal.”

judicial review in situations outlined in

The courts have had to decide whether the

this provision is not merely “fairly

provision strips courts of appeals from

discernible,” it is express and manifest.

reviewing all discretionary decisions or

This jurisdiction-stripping provision is part

of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 7

As the Court noted, there are many

(IIRIRA). The Supreme Court has stated

jurisdiction-stripping provisions in

that “many provisions of IIRIRA are

IIRIRA, some of which appear at first

aimed at protecting the Executive’s

glance to foreclose review in similar

discretion from the courts – indeed, that

kinds of situations. Among the

can fairly be said to be the theme of the

provisions not mentioned by the Supreme

legislation. See, e.g., 8 U.S.C. §

Court: “For example, section 1252(e)

1252(a)(2)(A) (limiting review of any

addresses limitations on judicial review

claim arising from the inspection of aliens

of exclusion orders, including habeas

arriving in the United States); §

review and collateral constitutional

1252(a)(2)(B) (barring review of denials

challenges to the validity of the system;

of discretionary relief authorized by

section 1252(f) provides limitations on

v a r i o u s sta tu to ry provisions); §

injunctive relief available in courts other

1252(a)(2)(C) (barring review of final

than the Supreme Court; and, section

1252(g) bars review of the Attorney

General’s decision to commence

Cir. 2002). Because in the instant case proceedings, adjudicate cases, or execute

the BIA deferred to the findings of the IJ removal orders.” CDI Info. Servs., Inc.

on the relevant “good faith” issue, we v. Reno, 278 F.3d 616, 620 (6th Cir.

review the opinion of the IJ, Abdulai v. 2002). In this opinion, we focus our

Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. inquiry upon the scope of 8 U.S.C. §

2001), and will use “IJ” or “BIA” as a 1252(a)(2)(B)(ii) and its applicability to

shorthand for the Attorney General and 8 U.S.C. § 1186a(c)(4), and express no

his designees. position about the other provisions.

6

only those made in the context of removal Tavarez was ineligible for the section

proceedings. Three courts of appeals have 1186a(c)(4)(B) waiver resulted in a final

held that section 1252(a)(2)(B)(ii) applies order of removal.

to all discretionary decisions enumerated

B. 8 U.S.C. § 1186a(c)(4)

in the relevant subchapter of Title 8, which

includes sections 1151-1378, regardless of Section 1186a(c)(4) states:

the context in which the decisions were

(4) Hardship waiver

made. See Samirah v. O’Connell, 335

F.3d 545, 549 (7th Cir. 2003) (revocation The Attorney General, in the

of parole); CDI Info. Servs., 278 F.3d at Attorney General’s

620 (denial of extension of non-immigrant discretion, may remove the

visa); Van Dinh v. Reno, 197 F.3d 427, conditional basis of the

434 (10th Cir. 1999) (transfer of aliens permanent resident status

from one facility to another). for an alien who fails to

meet the requirements of

The Court of Appeals of the Ninth

paragraph (1) if the alien

Circuit, on the other hand, disagrees. In

demonstrates that— . . . .

Spencer Enterprises, Inc. v. United States,

345 F.3d 683 (9th Cir. 2003), the court

held that § 1252(a)(2)(B)(ii) does not bar

(B) the qualifying marriage

review of the decision to issue an

was entered into in good

immigrant investor visa pursuant to §

faith by the alien spouse, but

1153(b)(5). Although the Spencer court

the qualifying marriage has

stated carefully that it “need not decide

been terminated (other than

whether § 1252(a)(2)(B)(ii) applies outside

through the death of the

the context of removal proceedings,” id. at

spouse) and the alien was

692, it concluded that because section

not at fault in failing to meet

1252(a )(2)(B )(ii) refers not to

the requirements of

“discretionary decisions” but to “acts the

paragraph (1), . . .

authority for which is specified under the

INA to be discretionary,” the provision

precludes review on ly o f those

. . . . In acting on

discretionary decisions for which there are

applications under this

no guiding legal standards. Id. at 689

paragraph, the Attorney

(emphasis in original). We need not reach

General shall consider any

that issue in this case nor do we reach the

credible evidence relevant to

issue of whether section 1252(a)(2)(B)(ii)

the application . The

covers discretionary decisions made

determination of w hat

outside the context of removal proceedings

evidence is credible and the

because in this case, the IJ’s finding that

weight to be given that

7

evidence shall be within the review. Not only may the Attorney

sole discretion of the General make the decision in her or his

Attorney General. discretion, but the Attorney General has

the “sole discretion” to decide “what

8 U.S.C. § 1186a(c)(4) (emphases added).

evidence is credible and the weight to be

The first paragraph of section given that evidence.” § 1186a(c)(4). This

1186a(c) explicitly assigns to the Attorney is particularly relevant here because the

General the discretion to “remove the thrust of Tavarez’s argument is that “the

conditional basis of the permanent resident Board failed to consider [his] objection to

status for an alien” who demonstrates one the manner in which the Immigration

of the three qualifications for waivers that Judge evaluated the evidence.” Pet. Suppl.

follow in the ensuing paragraphs. This Br. at 3-4. The IJ explicitly balanced the

statute thus falls within even the more considerations on the record, and because

narrow reading put forth by the Spencer that balance in this case is dispositive and

court – that determinations in which “the impervious to review, we set forth his

right or power to act is entirely within [the statements in full.

A ttorney General’s] judgmen t or

After discussion of the “best

conscience . . . [and] are matters of pure

evidence for a waiver,” the testimony of

discretion, rather than discretion guided by

Sanchez and Danny Tavarez, the IJ stated:

legal standards,” are those exempted from

j u d i c ia l re vie w b y sectio n On the minus side of the

1252(a)(2)(B)(ii). Spencer Enters., 345 ledger is the fact that there’s

F.3d at 690. And unlike the provision the virtually no documentation

Ninth Circuit exem pted from the at all in this case to establish

jurisdiction-stripping effect of section that this is a legitimate

1252(a)(2)(B)(ii), section 1186a(c) states marriage. There’s one

that the Attorney General may grant such savings account with no

a waiver, not that the Attorney General activity. There’s no

shall grant such a waiver, making clear checking account. There are

that the waiver may not be granted even if no joint leases, the property

the legal requirements of the three waiver that the respondent bought,

qualifications are met. Compare 8 U.S.C. he apparently bought in his

§ 1186a(c), with 8 U.S.C. § 1153(b)(5). own name, so his wife’s not

Section 1252(a)(2)(B)(ii) clearly precludes on that deed. There are no

judicial review of decisions under section affidav its from anyone

1186a(c)(4). familiar with the respondent

or his wife. There’s no

Section 1186a(c)(4) provides the

evidence of co-mingling of

Attorney General’s discretionary decision

assets. There are a few tax

with another layer of protection from

returns, which do suggest

8

some evidence of life a r e s o m e t i m e s m ix e d

together as husband and motives behind marriages.

wife, but for the most part, There are different feelings.

cons idering that these Apparently, there was a

people were married from f e e l in g o f a f f e c t io n ,

1992 until only about a year friendship and concern for

ago, a period of about eight him but it appears also that

years, there’s nothing here she would not have married

to speak of and it’s him but for the fact that he

remarkable that there is so needed a green card and she

little in this file to show that does not allege in here or

these two people lived admit or concede that she

together. ever received any money for

marrying him. Apparently

A.R. at 40. The IJ continued:

the Service never pressed

The Court believe her to make such a

[sic] that the respondent’s statement because she

then-wife, Eladia, probably doesn’t make one. So it

was around the house, appears that there was some

probably was in the house at sort of relationship, some

some point. She may have sort of friendship but it also

even lived there. The Court appears that it wasn’t really

questions however, whether a marriage. At least not

or not she was ever what what we would consider to

one would call a wife, what be a marriage.

one would think of as a

A.R. at 41.

partner. The Court also

believes that her statement, It follows that whether we agree

which is part of Exhibit 3, is with the IJ’s characterization of the

probably true in the sense underlying evidence as credible vel non

that it says that she married which led him to conclude that this was

him so that he could obtain not a good faith marriage, A.R. at 40, is

his permanent residence and irrelevant, as the statute itself gives the

she wishes to withdraw her Attorney General (acting through his

application but she also designee) the sole discretion to weigh the

hopes that no harm comes to evidence. Courts have been zealous in

him and that he’s allowed to their efforts to pressure our jurisdiction to

stay in the country. That’s review administrative decisions, but that

not an unreasonable position effort must fail under the overarching

for a person to have. There reality that it is Congress that has the

9

power to decide the jurisdiction of the Foti v. INS, 375 U.S. 217, 229 (1963), and

inferior federal courts. And IIRIRA makes ‘all matters on which the validity of the

plain our inability to review precisely the final order is contingent,’ INS v. Chadha,

issue presented here, that is, the relative 462 U.S. 919, 938 (1983) (internal

weight of the evidence. quotations omitted).” Nyonzele, 83 F.3d

at 979. In contrast, sectio n

Tavarez argues that “[a] strikingly

1252(a)(2)(B)(ii) explicitly disallows

similar issue of reviewability was

review of discretionary decisions in the

addressed in the case of Nyonzele v. INS,

context of removal proceedings. The

83 F.3d 975 [(8th Cir. 1996)].” Pet. Suppl.

jurisdictional holding of Nyonzele is no

Br. at 2. The Nyonzele court noted that

longer consistent with the passage of

the hardship waiver at issue there “was

IIRIRA.

initially denied by the district director,”

and that the “district director’s denial of a III.

hardship waiver is not itself appealable.”

CONCLUSION

Id. at 979. It continued, “Because the BIA

reviewed the waiver claim during the We hold that 8 U.S.C. §

deportation proceedings, that decision is 1252(a)(2)(B)(ii) bars us from reviewing

reviewable in this court.” Id. It also noted the discretionary denial of waivers under 8

that because “[e]ach of [the requests for U.S.C. § 1186a(c)(4). The statutory

relief at issue] is a matter statutorily vested provisions that the Attorney General “in

in the discretion of the Attorney General,” [his] discretion, may” remove the

its review was “limited to determining condition on permanent residence without

whether there has been an abuse of a joint application, and that the Attorney

discretion.” Id. Petitioner thus urges us to General has the “sole discretion” to weigh

hear the merits of this appeal under an the evidence and decide which evidence is

abuse of discretion standard. credible, compel our conclusion. 8 U.S.C.

§ 1186a(c)(4) (emphasis added). We will

But Nyonzele was decided before

therefore deny the petition for review.

the enactment of IIRIRA. When Nyonzele

was decided, the relevant jurisdictional

statute was 8 U.S.C. § 1105a (1994),

which gave the courts of appeals

jurisdiction to review all final orders of

deportation. Jurisdiction then was more

broad, and as the Eighth Circuit noted, its

“review of final orders of deportation

pursuant to 8 U.S.C. § 1105a(a) include[d]

‘all determinations made during and

incident to the administrative proceeding .

. . and reviewable together by the [BIA],’

10