Opinion
20-73696
10-21-2022
VICTOR NATHANAEL MARTINEZ-DEL ROSARIO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-851-886
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM
1. Victor Martinez-Del Rosario ("Petitioner") petitions this court to review a Board of Immigration Appeals ("BIA") decision, which determined he was ineligible for a good faith marriage waiver of the joint filing requirement for petitions for removal of the conditions of residency under § 216(c)(4)(B) of the Immigration and Nationality Act ("INA"). For the following reasons, we deny the petition.
2. The parties are familiar with the facts of the case, so we do not recite them here. As this is a petition for review from the BIA's de novo review of the record before the immigration court, we are limited to a review of the BIA's decision. Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1141 (9th Cir. 2005). All legal conclusions of the BIA are reviewed de novo and all factual determinations are evaluated under the substantial evidence standard. Parada v. Sessions, 902 F.3d 901, 908 (9th Cir. 2018). The substantial evidence standard requires that we "reverse factual determinations only when 'any reasonable adjudicator would be compelled to conclude to the contrary' based on the evidence in the record." Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (quoting INA § 242(b)(4)(B)).
3. An alien who is married to a United States citizen can obtain conditional permanent resident status under Section 216 of the INA, which permits him to live in the United States for two years. INA § 216(a)(1), (c)(2)(A). To remove the conditions of residency, the alien and his spouse must jointly file a petition with the Secretary of Homeland Security during that two-year period or face mandatory termination of his residency status. Id. § 216(c)(2). An alien that cannot satisfy the joint filing requirement may petition for a waiver of the joint filing requirement if "the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated . . . and the alien was not at fault." Id. § 216(c)(4)(B). The alien bears the burden of proof in demonstrating that the marriage was bona fide, which means that the alien and his spouse "intended to establish a life together at the time they were married." Oropeza-Wong, 406 F.3d at 1148.
4. Petitioner first argues that the BIA erred because it did not adequately extend his credibility finding to all relevant matters. Petitioner misconstrues the law, as the BIA was permitted to conclude that his testimony was credible but that it did not satisfy his burden of proof in light of the countervailing evidence in the record. Garland v. Dai, 141 S.Ct. 1669, 1680 (2021) ("[E]ven if the BIA treats an alien's evidence as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof."). Even if it believed that Petitioner was truthful in his testimony that he was unaware of the annulment proceedings, the BIA was permitted to credit the unopposed annulment complaint and the Massachusetts court's determination that Petitioner was provided notice of the proceedings to conclude that the annulment was properly granted and that the marriage was fraudulently consummated for immigration purposes. The BIA was further justified in concluding that Petitioner's testimony did not satisfy his burden of proof because the other evidence-a checking account with a balance of $4.00, one undated card from his ex-wife, one email from his ex-wife, and several undated photographs- failed to demonstrate the requisite intent to enter a good faith marriage. Cf. Oropeza-Wong, 406 F.3d at 1148 (holding that the alien failed to meet its burden of proof when submitting substantially more documentation showing joint ownership of financial assets). As the evidence does not compel a contrary finding to that of the BIA, we will not displace its decision.
5. Petitioner next argues that the BIA applied the wrong legal standard by purportedly focusing on the status of his marriage at the time his immigration status was adjusted. Contrary to Petitioner's contention, the BIA applied the proper standard. It cited Matter of Laureano for the rule that a marriage is bona fide "if the parties intended to establish a life together at the time of the marriage" and that "[c]onduct after the marriage can be considered as a factor relevant to whether the marriage was bona fide." 19 I. &N. Dec. 1, 3 (BIA 1983). When the agency expressly cites and applies the correct caselaw to its analysis, this court will not hold that the wrong legal standard was applied. Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009). Thus, the BIA properly credited Petitioner's concession that his marriage was not in good faith when his immigration status was adjusted because he no longer lived with and had not seen his ex-wife in four months as relevant evidence that his marriage was not bona fide. By considering this along with the other evidence suggesting the same conclusion, the BIA had substantial evidence to conclude that Petitioner was not eligible for a good faith waiver.
6. For the foregoing reasons, we DENY the petition.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).