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Chan v. Lynch

United States Court of Appeals, First Circuit

December 13, 2016

WEN YUAN CHAN, Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

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

          Gregory Romanovsky, with whom Romanovsky Law Offices was on brief, for petitioner.

          Robert Michael Stalzer, Attorney, Office of Immigration Litigation, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, and Annette M. Wietecha, Attorney, Office of Immigration Litigation, were on brief, for respondent.

          Before Barron, Selya and Stahl, Circuit Judges.

          SELYA, Circuit Judge.

         This case presents a question of first impression in this circuit: when United States Citizenship and Immigration Services (USCIS) has approved an I-130 "immediate relative" visa petition based on an alien's marriage to a United States citizen, does the immigration court, in a parallel removal proceeding, have jurisdiction to inquire into the bona fides of the anchoring marriage? Here, the immigration judge (IJ) answered this question in the affirmative; found the anchoring marriage to be a sham; denied the alien's request for an adjustment of status; and entered an order of removal. The Board of Immigration Appeals (BIA) affirmed. After careful consideration, we hold that the bona fides of the anchoring marriage were properly before the immigration court and - with that foundation in place - we conclude that the BIA's decision is supported by substantial evidence. Accordingly, we deny the alien's petition for judicial review.

         I. BACKGROUND

         Petitioner Wen Yuan Chan is a Chinese national. She entered the United States in February of 2006 on a non-immigrant visitor's visa. Around the beginning of April, she met her husband-to-be, Sui Wah Chan, [1] who is a citizen of the United States. Their courtship was brief: within two months, they married. Sui Wah Chan promptly filed papers with USCIS to adjust the immigration status of both the petitioner and her son so that they could become legal permanent residents (LPRs). USCIS refused to recognize the marriage, however, and rejected her application for adjustment of status in October of 2007.[2]

         On December 12, 2007, the Department of Homeland Security instituted removal proceedings against the petitioner (who, by then, had overstayed her visitor's visa). While those removal proceedings were pending, Sui Wah Chan again asked USCIS, by means of an I-130 "immediate relative" visa petition, to recognize his marriage to the petitioner. USCIS approved this second I-130 petition in October of 2008. Because removal proceedings were in progress, however, only the immigration court (not USCIS) could adjust the petitioner's status. See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)(i).

         On October 28, 2010, the petitioner filed applications for an adjustment of status and a waiver of inadmissibility in the removal proceeding. On February 14, 2013 (ironically, Valentine's Day), the IJ held a hearing to determine the bona fides of the petitioner's marriage and to pass upon her pending applications. The IJ found that the petitioner's testimony was not credible and that, based on the evidence presented, her "marriage at the time of its inception was not bona fide." Since the petitioner's application for an adjustment of status was premised on the marriage, the IJ's finding that the marriage was a sham rendered her ineligible to adjust her status.

         Although the inquiry might have ended there, the IJ went on to find the petitioner inadmissible for two separate reasons. First, he concluded that she was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) because she was attempting to procure an immigrant visa through a fraudulent marriage. Second, he concluded that she was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) due to her 2008 nolo contendere plea to a Connecticut assault charge (which the IJ found to be a crime involving moral turpitude). Next, the IJ refused the petitioner's request for a waiver of inadmissibility, both as a matter of discretion and because he found her ineligible for the waiver. Having announced these rulings, the IJ wrapped up the package by ordering the petitioner's removal to China.

         The petitioner appealed to the BIA, which affirmed ostensibly "[f]or the reasons discussed by the [IJ]."[3] The BIA, however, added its own gloss. Like the IJ, it concluded that the petitioner "fail[ed] to establish [that] she entered into the marriage in good faith, " thus rendering her ineligible for the relief that she sought. In reaching this conclusion, the BIA explicitly rejected the petitioner's contention that her approved I-130 petition stripped the IJ of jurisdiction to consider whether her marriage was bona fide. The BIA further agreed that the petitioner's sham marriage rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). In view of this determination, the BIA saw no need to address the question of whether the petitioner was inadmissible on account of her criminal record. This timely petition for judicial review followed.

         II. ANALYSIS

         "Where, as here, the BIA adopts and affirms the IJ's decision but adds reasoning of its own, we review the tiered decisions as a unit." Ramirez-Matiasv.Holder, 778 F.3d 322, 325 (1st Cir. 2015). In this case, however, we begin with a threshold matter: the government's challenge to this court's jurisdiction (a challenge ...


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