First Circuit Finds BIA Acted Within Its Discretion in Citing Intervening Case Decided After Petitioner Submitted Her Appeal Brief
A native and citizen of Guatemala sought to review the decision of a Board of Immigration Appeals (BIA) to deny her appeal of an Immigration Judge’s decision which rejected her asylum request. Veronica Carmela Cortez Cardona arrived in the United States in April 2013 without proper documentation, and was contacted by the Department of Homeland Security (DHS) within the next month. DHS alleged she did not have proper paperwork documenting her entry, and served her with a notice to appear before an immigration judge. In July 2013, she acknowledged both the factual allegations and the removal charge against her, and filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In her asylum application, she detailed an emotionally, physically, and sexually abusive relationship she had with a Guatemalan man whom she dated named Juan Carlos.
Cortez testified that she engaged in a mutual relationship with Juan Carlos for a few months after they began dating, but she said that changed upon his introduction of her to many of his friends who were gang members attempting to recruit her. Once she made it evident she had no intentions of joining, her relationship with Juan Carlos quickly became abusive. So pervasive was his abuse, that Cortez sought to escape his physical and sexual violence by arranging travel plans to flee to the United States. She asserted her eligibility for asylum.” to the Immigration Judge, and maintained her assertion at her review, based on fear of persecution from her “membership in a particular social group.” Two of such potential social groups were proposed by Cortez, “Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination,” and “women in domestic relationships who are unable to leave.”
The Immigration Judge provided three reasons for his denial of her asylum request. Primarily, the judge found inconsistencies in her testimony and her report supplied to border agents, thus removing the credibility of her testimony. Furthermore, if her testimony were found to be credible, the judge found her proposed social groups to be unrecognizable under the Immigration and Nationality Act (INA) due to statutory requirements of groups to, “be sufficiently particular to permit an accurate separation of members from non-members” and objective observer would not reliably [be able to] gauge who is or who is not a member of the group[s].” The judge also asserted the viability internal relocation in Guatemala remained a “significant possibility” for her.
Cortez appealed her denial to the BIA, which did not address IJ’s reasons for denial questioning her lack of credibility nor her possible qualification of relocation in Guatemala. Rather, the BIA referenced a recent decision it made in which the Board held that, dependent upon the circumstances of an individual case, Guatemalan women unable to leave their relationship can constitute a cognizant social group. Not addressing the obvious fact that she was not married to Juan Carlos, the Board put forth that “the respondent and her boyfriend had not established a domestic relationship, and the respondent has limited knowledge about her former boyfriend’s life.” This was demonstrated to the Board, by her inability to produce from memory where he resided, facts about immediate family members, his birthday, or even his last name. This led the Board to conclude that she did not demonstrate that she was in a domestic relationship, and therefore cannot substantiate her membership in the group for which she is seeking asylum. The BIA rejected her arguments and denied her motion to reopen and reconsider.
Cortez next filed a timely appeal urging the Board to reopen and reconsider her appeal. She argued that the Board committed three distinct legal errors in their findings and subsequent ruling. First, she argued the recent decision used as evidence against her should not have been allowed due to its ruling coming after when she filed her brief to the board. Furthermore, she contested that her counsel should not be held responsible for keeping abreast of all of the latest rulings in immigrational law, a field that is dynamic, fluid, and in constant flux, especially if these rulings are made after their brief has been filed. The BIA wholeheartedly rejected this line of reasoning. It stated that it was exactly her counsel’s obligation as her legal representative to keep up with the latest rulings, and it went so far as to suggest that failure to consider such an integral and pertinent ruling could be grounds for remand from the court.
Second, Cortez contested that even if the recent case were applicable, she was unfairly denied a chance to submit additional briefing in response to her motion to reopen and reconsider. She also asserted that “severe time constraints” were placed upon her, and that granting her adequate time would have afforded her the opportunity to properly brief the matter while not causing detriment to the BIA. The Board rebuffed this claim as well, stating that it had no obligation to allow time for further briefing, and that it specifically was reviewing the previous case cited against her without further briefing.
Finally, Cortez challenged the narrow scope with which the BIA determined her exclusion from the particular social group based upon her lack of marital status with Carlos. The Board contested that she misconstrued its actual decision. It identified the IJ’s identification of social group as exclusionary of Cortez due to marital status, but it did not review those facts. It instead reviewed the group that she placed herself in, “Guatemalan women in domestic relationships who are unable to leave.” The Board determined that she was not in a domestic relationship with Carlos. While she was in a 3-month relationship with him, the Board concluded, based on a dictionary definition of domestic as pertaining to the home, the household, or household affairs, that she never lived with him, therefore was ineligible for inclusion in this particular social group, which she herself prescribed. For each of the outlined reasons, the BIA denied her petition.
For more information, view the full case.
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Fourth Circuit Says Determining Whether Petitioner’s Evidence Meets Good Faith Marriage Standard Is Subject to De Novo Review
Though her marriage ended in divorce, Juraluk Upatcha, a citizen of Thailand, sought a hardship waiver to remain in the United States, and was found by an Immigration Judge to have failed to adequately demonstrate good faith by which she entered her marriage. The Board of Immigration Appeals (BIA) reviewed for clear error and reaffirmed the ruling. The Court of Circuit Appeals stated that the scope with which the BIA reviewed the ruling was incorrect, and it granted her petition and remanded so that the Board could review the Immigration Judge’s decision under proper standard.
Upatcha, while living in Thailand, was introduced by her sister to Sergio Gonzalez, a naturalized U.S. citizen residing in South Carolina. Though they primarily courted through email and telephone correspondence, Gonzalez did make a one-week trip to Thailand, during which he proposed to Upatcha. On July 13, 2008, she entered the United States on a fiancé visa, and the two were married five days later.
As a result of their marriage, Upatcha obtained lawful permanent resident status on a conditional basis. This condition lasted for a period of two years, after which she could remain in the country permanently, contingent upon her and her husband’s submission of a joint petition swearing the legality of their marriage, whether it remained in effect, and that it was not established with immigrational motives. Approximately three months after the marriage, however, Upatcha waived her ability to file such a claim when she initiated divorce proceeding against Gonzalez. The finalization of the divorce in February 2009 ended Upatcha’s conditional residency and opened the door for the possibility of her removal.
Upatcha then filed for a hardship waiver, in lieu of the now impossible joint petition. This hardship waiver allowed for the Secretary of Homeland Security to, as he sees fit, to “remove the conditional basis of permanent residence status” for noncitizens whose marriage ended as long as the individual can prove that the marriage was entered “in good faith.” The Department of Homeland Security denied her petition, highlighting substantial differences between evidence provided by Upatcha and the couple’s divorce decree. This resulted in DHS terminating her permanent resident status and charging her with removability. Going before an Immigration Judge for removal proceedings, Upatcha conceded the charge of removability and renewed her petition for good faith marriage waiver, but was denied by the IJ after an evidentiary hearing in which Upatcha, Gonzalez, and other witnesses testified.
In determining the good faith standing of the marriage, the Immigration Judge had to decide “whether the parties intended to establish a life together at the inception of the marriage.” In reaching this determination, the judge assessed various pieces of evidence from physical documents such as intermingling of finances, the length of time of cohabitation, and any birth certificates from their children, as well as testimony from witnesses and from Upatcha herself. Citing Upatcha’s testimony as lacking credibility after finding inconsistencies between her statements and those purported by Gonzalez, the brevity of the two’s one week courtship, and an absence of any joint monetary or proprietary ventures, the IJ determined that she failed to meet her burden of demonstrating good faith marriage.
Her appeal then was dismissed by the BIA in a single member decision. It was determined that for good faith marriage should be clear error standard of review. The BIA found no clear error in the Immigration Judge’s determination that she did not adequately demonstrate good faith. Upatcha timely petitioned the Court of Appeals for review.
Upatcha argued that the Immigration Judge did not utilize the proper standard of review when determining the validity of her good faith standing. The court of Appeals agreed with her assertion. While the BIA accurately reviewed her credibility determination for clear error, they affirm de novo review should have been the scope through which it determined the IJ’s legal judgement that the evidence and facts did not meet the good faith standard.
Although prior to 2002 all Board reviews of IJ decisions were required by regulation to be de novo for all aspects, in 2002 new regulations warranted the BIA review of findings of fact and credibility determinations is limited. Thusly, IJ findings that fall into that category can only be reversed by clear error. The Board continues de novo review, however, “in all other issues of appeals from immigration judges.” The Board, essentially, defers to the Immigration Judge’s findings of facts for clear error review, but the legal ramifications of such facts and the conclusions which are drawn from those facts are to be decided are issues on which the BIA utilizes its independent judgement under de novo review. The good faith marriage determination was concluded to fall into the latter category.
The Court of Appeals was not in a position to make a ruling on such a matter. Instead it granted Upatcha’s petition for review, sending the case back to the Board of Immigration Appeals for de novo review, which the Court of Appeals concluded was proper for the matter.
For more information, view the full case.
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