Noemi Saenz-herrera, Petitioner, v. Immigration & Naturalization Service, Respondent, 43 F.3d 1483 (10th Cir. 1994)

ORDER AND JUDGEMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this petition for review. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

The INS issued an order to show cause to petitioner, a native and citizen of Mexico, charging her with remaining in this country longer than authorized. A deportation hearing was held before an Immigration Judge, and petitioner admitted the allegations in the order to show cause and conceded deportability. She then applied for suspension of deportation pursuant to 8 U.S.C. 1254(a) (1) or, in the alternative, for voluntary departure pursuant to 8 U.S.C. 1254(e). The Immigration Judge found petitioner deportable and ineligible for both suspension of deportation and voluntary departure and denied relief. The Board of Immigration Appeals (Board) dismissed petitioner's appeal, also finding that petitioner was ineligible for the requested relief. Petitioner appeals the Board's dismissal.

Under 8 U.S.C. 1254(a) (1), the Attorney General has discretion to suspend the deportation of an alien who has been continuously present in this country for seven years preceding application for suspension, if the alien was a person of good moral character during those seven years, and a person whose deportation would result in extreme hardship to him or herself, or a citizen spouse, parent, or child. Subsection (e) of that statute confers discretionary authority upon the Attorney General to permit an alien who is and has been of good moral character for the five years preceding application to voluntarily depart the United States at the alien's own expense. There are certain classes of people listed in 8 U.S.C. 1101(f) who are statutorily ineligible to qualify as people of good moral character. In addition to those specifically identified classes, the last sentence of that subsection provides: "The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." 8 U.S.C. 1101(f).

Petitioner has the burden of proving her eligibility for suspension of deportation. The first two requirements, seven years' continuous residence and good moral character, are factual questions that we review for substantial evidence....The third requirement, that deportation would result in extreme hardship, is a discretionary matter that we review only for an abuse of discretion.

Turri v. INS, 997 F.2d 1306, 1308 (10th Cir. 1993) (citations and footnote omitted).²  We now turn to discussion of the Board's determination regarding petitioner's moral character.³ 

The Board determined that petitioner did not fall into any of the specific classes enumerated in 1101(f). It did find, however, that, for both the seven and five-year periods preceding her application for relief, petitioner had failed to demonstrate good moral character for other reasons, as set forth in the last sentence of 1101(f). In making this finding, the Board specifically relied on petitioner's admission of her knowledge that she was listed on her brother's insurance as his spouse in order to obtain benefits. The Board also relied on testimony of an INS agent concerning the results of an investigation he did regarding the nature of a marriage between petitioner and a United States citizen from 1986 to 1989.⁴  The agent testified to the specifics of his investigation and that the results indicated that the marriage was entered into to obtain adjustment of petitioner's immigration status. He also testified that petitioner admitted to him that she entered into the marriage to obtain immigration documentation. The Board also considered evidence of events that occurred before the seven-year period: that petitioner acquired a social security card fourteen years prior to her application for suspension of deportation or voluntary departure, and that she used a friend's social security card to obtain employment and welfare benefits.

Petitioner submitted evidence in support of her contention that she is and was for the required periods a person of good moral character. The Board considered this evidence, but found it "insufficiently vague regarding [petitioner's] past actions described above and any efforts she may have made to reform such behavior." R. at 5.

Our review of the record substantiates the Board's factual findings. The record contains substantial evidence in support of the Board's determination that petitioner is and was not a person of good moral character for the periods of time required to qualify for suspension of deportation or voluntary departure. The Board's dismissal of petitioner's appeal is AFFIRMED.