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Valdez v. Lynch

United States Court of Appeals, First Circuit

February 10, 2016

ARSENIO VALDEZ, Petitioner,
v.
LORETTA E. LYNCH,[*] Attorney General, Respondent

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

John H. Ruginski, Jr. on brief for petitioner.

Channah F. Norman, Trial Attorney, Office of Immigration Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before Torruella, Selya, and Thompson, Circuit Judges.

OPINION

THOMPSON, Circuit Judge.

Petitioner Arsenio Valdez seeks review of an order of the Board of Immigration Appeals (" BIA" ) denying his request for a so-called " marriage waiver" from removal. For the reasons explained below, the petition will be denied.

BACKGROUND

Valdez, a citizen and native of the Dominican Republic, obtained conditional permanent resident status in 1996 after marrying an American citizen the year before. Their marriage fell on hard times, and the couple separated in the early 2000s, with their divorce becoming final in 2008.

Served with a Notice to Appear in October of 2011, Valdez conceded removability at a hearing before an immigration judge (" IJ" ). At the same time, Valdez sought relief from removal in the form of an adjustment of status from conditional permanent resident to permanent resident. He also asked for a waiver of the usual requirement to present his status-change request jointly with his spouse. He said that he was forced to make this request on his own, and thus needed a waiver from the joint petition requirement, because he had " entered into the marriage in good faith but the marriage was terminated through divorce or annulment."

After considering Valdez's evidence, the IJ concluded that Valdez failed to establish he had entered into his marriage in good faith. Accordingly, she ordered him removed to the Dominican Republic. Valdez appealed to the BIA, which in a written decision discussed what it saw as a lack of evidence that Valdez married in good faith, and upheld the IJ's decision in its entirety after concluding that Valdez " failed his burden of proof to establish that the marriage was bona fide."

Aggrieved, Valdez filed a timely petition for review with this court.

STANDARD OF REVIEW

In denying Valdez's appeal, the BIA discussed the evidence adduced before the IJ and the legal arguments Valdez made as to why the IJ got it wrong. In affirming the IJ, the BIA indicated that it had relied on its own reasoning, plus the reasons " articulated by the [IJ] in her decision . . . ." Because the BIA did not simply adopt the IJ's decision, but relied instead on a combination of its own reasoning and the IJ's, we review the IJ's and the BIA's decisions together. Dimova v. Holder, 783 F.3d 30, 35 (1st Cir. 2015).

The parties agree that Valdez bore the burden of showing that he entered into his marriage in " good faith." Lamim v. Holder,760 F.3d 135, 137 (1st Cir. 2014). Whether or not this burden has been met is a call for the IJ or BIA to make in the first instance, as the " judgment about whether a marriage was entered into in good faith is a factual one." Id. at 138 (citing Jing Lin v. Holder,759 F.3d 110, 112 (1st Cir. 2014)). We must uphold the factfinder's judgment as to the presence or absence of good faith " so long as it is 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Id. (quoting Reynoso v. Holder,711 F.3d 199, 205 (1st Cir. 2013)). What this all means is that we will only reverse the IJ's or the BIA's finding on whether a marriage was entered into in good faith if " the ...


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