FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Gregory Romanovsky, with whom Romanovsky Law Offices was on
brief, for petitioner.
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
Barron, Selya and Stahl, Circuit Judges.
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
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,  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
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. §§
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
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.
petitioner appealed to the BIA, which affirmed ostensibly
"[f]or the reasons discussed by the
[IJ]." 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.
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 ...