Boluk v. Holder, Jr., No. 10-2396 (2d Cir. 2011)
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Petitioner sought review of a final order of removal, issued after a determination that he was ineligible for a "hardship waiver" of the requirements for filing a joint petition with his citizen spouse to lift the conditions on his residency. At issue was whether the agency erred as a matter of law by placing upon petitioner the burden of establishing that his qualifying marriage was entered into in good faith; whether the wrong standard was applied for assessing eligibility for a hardship waiver; and whether an erroneous assessment was made in weighing the evidence. The court held that the allocation of the burden of proof was proper where it was consistent with the applicable statutory structure and intent; that the agency articulated the proper legal standard for demonstrating a good faith marriage where the immigration judge's consideration of the course of the relationship after the wedding, in order to ascertain an alien's intent at the time he entered his marriage, was entitled to deference; and that the agency properly determined that petitioner was ineligible for the relief he sought where the amount of weight to be accorded any particular fact raised no question of law and was not within the court's jurisdiction to review the agency's determination. Accordingly, the petition for review was denied.
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10-2396-ag Boluk v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: April 11, 2011 Decided: June 7, 2011) Docket No. 10-2396-ag - - - - - - - - - - - - - - - - - - - -x NEDIM BOLUK, Petitioner, - v.ERIC H. HOLDER, JR., United States Attorney General, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, LEVAL and KATZMANN, Circuit Judges. Petitioner Nedim Boluk seeks review of a final order of 31 removal, issued after a determination that he is ineligible 32 for a hardship waiver of the requirements for filing a 33 joint petition with his citizen spouse to lift the 34 conditions on his residency. 35 Nationality Act ( INA ) § 216(c)(4)(B), 8 U.S.C. 36 § 1186a(c)(4)(B). 37 erred as a matter of law by placing upon him the burden of See Immigration and Boluk argues on appeal that the agency 1 establishing that his qualifying marriage (which failed) was 2 entered in good faith; that the wrong standard was applied 3 for assessing eligibility for a hardship waiver; and that an 4 erroneous assessment was made in weighing the evidence. 5 petition for review is denied. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The GLENN T. TERK, Wethersfield, Connecticut, for Petitioner. SARAH VUONG, Trial Attorney (Emily Anne Radford, Assistant Director, on the brief), Office of Immigration Litigation, for Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia, for Respondent. DENNIS JACOBS, Chief Judge: Petitioner Nedim Boluk, who became a conditional 22 permanent resident after marriage to a United States 23 citizen, sought a hardship waiver of the procedures for 24 lifting the conditions of his residency after his marriage 25 dissolved. 26 Immigration Appeals (the BIA ) denied relief. 27 review of those decisions by this Court. 28 The immigration judge and the Board of Boluk seeks Ordinarily, the alien spouse and the citizen spouse 29 must jointly petition for removal of the conditions on the 30 alien spouse s residency. However, a hardship waiver of the 2 1 joint petition requirements is available if the marriage, 2 though entered in good faith, ends in divorce prior to the 3 point at which the alien must seek to lift the conditions on 4 his residency. 5 judge and the BIA erred as a matter of law in placing upon 6 him the burden of proving eligibility for a hardship waiver, 7 in articulating the standard for demonstrating a good faith 8 marriage, and in weighing the evidence of good faith that 9 Boluk presented to the immigration judge. 10 Boluk argues on appeal that the immigration We conclude that the allocation of the burden of proof 11 was proper, that the agency articulated the proper legal 12 standard for demonstrating a good faith marriage, and that 13 the agency properly determined that Boluk was ineligible for 14 the relief he sought. 15 is denied. 16 17 Accordingly, the petition for review BACKGROUND We recite the facts underlying this petition for review 18 as recounted by Petitioner. In 1986, Boluk, a then-16-year- 19 old native and citizen of Turkey, traveled to Canada to 20 visit a relative. 21 accidentally crossed the border and landed him in the United 22 States by mistake. In Canada, he rented a boat that J.A. at 100. 3 Boluk recalls being 1 detained by immigration officials who left [him] in some 2 motel, where he remained for two days. 3 then took a bus to New York, roomed with his brother in West 4 Haven, Connecticut, and began working at the Blue Sky Diner. 5 J.A. at 102-03. 6 Colangelo. 7 J.A. at 101. He Also employed by the diner was Ms. Karen J.A. at 79, 103, 106. At first sight, Boluk fe[lt] like [he was] in love 8 with Ms. Colangelo. J.A. at 79. 9 later, they started dating. Six or seven months J.A. at 80. Boluk communicated 10 with Ms. Colangelo with his little English, hand gestures, 11 and the drawing of pictures. 12 his love for Ms. Colangelo, J.A. at 80, and knew she cared 13 because she told him she like[d] him and love[d] him. 14 J.A. at 80, 81. 15 J.A. at 106. In 1988, they married in Turkey. Boluk confided J.A. at 81. After 16 the wedding, the couple stayed in Turkey for about a month, 17 until Ms. Colangelo returned to Connecticut; Boluk stayed on 18 in Turkey for about a year as he had a hard time procuring 19 a visa. 20 States in 1989 as a lawful conditional resident, J.A. at 21 143, Ms. Colangelo met him at the airport and was very happy 22 to see him. J.A. at 82. Upon Boluk s return to the United J.A. at 83-84. But a couple of days later 4 1 Boluk realized Ms. Colangelo was not happy, and she 2 expressed resentment that he had remained so long in Turkey. 3 J.A. at 84. 4 using drugs; she sometimes stayed [out] all night, 5 sometimes never came home at all, and sometimes did not come 6 to work. 7 86. 8 and he took up with a Turkish woman (with whom he has a 9 child who was born in the United States). 10 At this point, Boluk learned Ms. Colangelo was They began to have big arguments. J.A. at 85, Ms. Colangelo left Boluk in 1989, J.A. at 86-87, 93-94, J.A. at 115-16. In 1994, Boluk filed an I-751 Petition with United 11 States Citizenship and Immigration Services ( USCIS ) to 12 remove the conditions of his residence. 13 Absent some specified ground of waiver, an I-751 Petition 14 must be signed by both spouses attesting to a bona fide 15 marriage. 16 himself and Ms. Colangelo, and it indicated that they were 17 living together notwithstanding that their relationship had 18 ended in 1989. 19 Petition, an interview was scheduled by USCIS. 20 Colangelo failed to appear. 21 (purportedly) joint petition was denied by USCIS. 22 143. J.A. at 116-17. Boluk s I-751 Petition was signed jointly by J.A. at 119. Following submission of the J.A. at 118. 5 Ms. In 1998, the J.A. at 1 During the pendency of his I-751 Petition, Boluk had 2 filed for divorce in 1996. 3 final. 4 Petition to remove the conditions of his residence, this 5 time requesting a waiver of the joint filing requirements on 6 the ground that his marriage, though ended in divorce, had 7 been entered in good faith. 8 9 J.A. at 118-19. In 2002, his divorce became That year, he again filed an I-751 J.A. at 143. In 2006, Boluk was served with a Notice to Appear for removal proceedings, which charged him as an alien whose 10 conditional resident status had expired. 11 2007, Boluk s request for a waiver of the joint filing 12 requirement of the I-751 Petition was denied on the ground 13 that he failed to provide evidence to support his claim that 14 his marriage was entered into in good faith. 15 J.A. at 184. In J.A. at 144. Boluk appeared before an immigration judge and conceded 16 removability, but requested relief in the form of review of 17 the USCIS decision denying his 2002 I-751 Petition to remove 18 the conditions on his residency. 19 immigration judge held a hearing at which Boluk testified. 20 At this hearing, the immigration judge also received the 21 testimony and affidavits of two individuals who had worked 22 with Boluk, along with an affidavit of a third individual 6 J.A. at 17-18. The 1 who had occasion to observe the relationship between Boluk 2 and Ms. Colangelo. 3 denied Boluk s application for review of the USCIS decision 4 and ordered Boluk s removal to Turkey. 5 immigration judge ruled that, pursuant to INA 6 § 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B), and its 7 implementing regulation, 8 C.F.R. § 1216.5(e)(2), Boluk had 8 the burden of establishing that his marriage was entered 9 into in good faith and that he failed to submit sufficient 10 evidence of his commitment to the marriage to sustain his 11 burden. After the hearing, the immigration judge J.A. at 26. The J.A. at 24-26. 12 As the immigration judge observed, Boluk presented no 13 documentary evidence of his commitment to his wife either 14 before or after he immigrated to the United States. 15 at 24. 16 general questions about the bona fides of the 17 relationship: Boluk was only sixteen when he met Ms. 18 Colangelo; they lived together only briefly; and Boluk did 19 not really speak much English, making it very unclear to 20 the Court how [Boluk was] able to . . . effectively 21 communicate with Ms. Colangelo. 22 the joint I-751 Petition submitted in 1994 presented a J.A. The immigration judge cited facts that raised 7 J.A. at 24, 25. Moreover, 1 serious issue and cast serious doubt on [Boluk s] overall 2 credibility ; Boluk could not explain how this document came 3 to be filed when he and Ms. Colangelo were separated or why 4 the form indicated that they were living at the same 5 address. 6 J.A. at 25. Boluk s timely appeal to the BIA argued that the 7 immigration judge misplaced the burden of proof and had 8 applied the wrong standard for assessing eligibility for a 9 hardship waiver. J.A. at 10-11. As to burden, Boluk 10 maintained that the statutory allocation is ambiguous and 11 therefore should have been construed in his favor. 12 the standard for assessing eligibility, Boluk argued (in a 13 nutshell) that the immigration judge should have focused his 14 inquiry on the circumstances leading up to the marriage and 15 should not have considered whether Boluk was a committed 16 husband, or the unfortunate course of the marriage after the 17 wedding. 18 The BIA dismissed Boluk s appeal. As to In considering the 19 burden of proof issue, the BIA relied on In re Mendes, 20 I. 20 & N. Dec. 833 (BIA 1994), which ruled that Congress chose 21 to shift the burden of proof onto the alien to show that 22 even though the marriage failed, it was entered into in good 8 1 faith. 2 judge that Boluk failed to sustain his burden of proof. 3 J.A. at 4. 4 Id. at 838. The BIA agreed with the immigration As to the standard for assessing eligibility for a 5 hardship waiver, the BIA framed the central question as 6 whether the bride and groom intended to establish a life 7 together at the time they were married, and reasoned that 8 the level of commitment to the marriage thereafter had 9 bearing on that question. J.A. at 4. As support, the BIA 10 cited the regulation governing applications for waiver of 11 the joint filing requirement based upon an alien s claim 12 that a good faith marriage terminated in divorce. 13 § 1216.5(e)(2). 14 8 C.F.R. Boluk s timely petition for review renews his arguments 15 that the immigration judge erred in placing on him the 16 burden of establishing a good faith marriage and in 17 articulating the standard for demonstrating a good faith 18 marriage. 19 erred in weighing the evidence of good faith he presented. Boluk also maintains that the immigration judge 9 1 2 3 4 5 DISCUSSION I Where, as here, the BIA adopts the [immigration 6 judge s] reasoning and offers additional commentary, we 7 review the decision of the [immigration judge] as 8 supplemented by the BIA. 9 469 (2d Cir. 2009) (internal quotation marks omitted). Mahmood v. Holder, 570 F.3d 466, We 10 grant Chevron deference to the [BIA s] construction of the 11 INA. 12 also Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 13 467 U.S. 837, 842 (1984). 14 adhere to Congress purpose where the INA clearly speaks to 15 the point in question, and we examine de novo questions of 16 law decided by the immigration judge or the BIA. 17 266 F.3d at 102. 18 we must defer to any reasonable interpretation of the 19 statute adopted by the [BIA] as the entity charged by 20 Congress with the statute s enforcement. 21 Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir. 2001); see Under the Chevron standard, we Kuhali, When the INA is silent or ambiguous, then Id. II 22 This Court retains jurisdiction to review Boluk s 23 challenge to the allocation of the burden of proof because 24 it is a question of law whether, in a particular 10 1 circumstance, an alien bears the burden of establishing 2 eligibility for a hardship waiver. 3 § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep t of 4 Justice, 471 F.3d 315, 330-31 (2d Cir. 2006). 5 issue presented here is the proper allocation of burden when 6 the relationship through which an alien s conditional 7 residency was obtained has ended in divorce. 8 9 8 U.S.C. The precise Boluk contends on appeal that the INA is ambiguous as to which party bears the burden of proof on the issue of 10 whether an alien s conditional status should be terminated 11 for failure to establish a good faith marriage, and that 12 this statutory ambiguity should have been resolved in his 13 favor. 14 neither silent [n]or ambiguous with respect to the specific 15 issue presented by this appeal. 16 Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 424 17 (1999) (internal quotation marks omitted). 18 wording requires that the alien demonstrate[] that . . . 19 the qualifying marriage was entered into in good faith by 20 the alien spouse, but the marriage has been terminated. 21 U.S.C. § 1186a(c)(4)(B) (emphasis added). 22 intent of Congress is clear, that is the end of the matter; We disagree. The statutory provision at issue is 11 Immigration & The statutory 8 Because the 1 for the court, as well as the agency, must give effect to 2 the unambiguously expressed intent of Congress. 3 467 U.S. at 842-43. 4 committed no error of law in allocating the burden. 5 Chevron, The immigration judge and the BIA This allocation of burden represents a shift. When a 6 conditional resident petitions jointly with a citizen spouse 7 to remove the conditions on his residency and the Attorney 8 General determines that petition adversely, the conditional 9 resident may request review of that determination in a 10 removal proceeding. In such a proceeding, the burden of 11 proof is on the government to establish, by a preponderance 12 of the evidence, that the facts and information [contained 13 in the petition] are not true with respect to the qualifying 14 marriage. 15 (such as Boluk) fails to meet the requirements for timely 16 filing a joint petition, or for jointly appearing for a 17 personal interview, the alien may seek a waiver of these 18 requirements, in which event the alien bears the burden of 19 establishing eligibility for a removal of the conditional 20 status. 21 2010); see also Hijazi v. Dep t of Homeland Sec., 239 F. 22 App x 629, 631 (2d Cir. 2007) (summary order) ( While the 8 U.S.C. § 1186a(c)(3)(D). However, if an alien Hammad v. Holder, 603 F.3d 536, 539, 543 (9th Cir. 12 1 [Department of Homeland Security] had the burden to show 2 that [the petitioner] failed to meet the requirements for 3 removal of conditions in the face of a jointly filed 4 application, it was petitioner who bore the burden of 5 proving his eligibility for a good-faith waiver of the joint 6 filing requirement. ). 7 that the marriage that provided the basis for the alien s 8 conditional residence in the first place was not a sham 9 marriage and that the marriage had terminated for other This shift in burden helps to ensure 10 reasons. 11 2003); accord Ibrahimi v. Holder, 566 F.3d 758, 760 (8th 12 Cir. 2009) (requiring alien to establish a qualifying 13 marriage entered in good faith). 14 in other circuit courts of appeals are also in accord.1) 15 Krazoun v. Ashcroft, 350 F.3d 208, 209 (1st Cir. (Unpublished dispositions The BIA agrees in a published opinion. Where a citizen 16 spouse had withdrawn his support for a joint petition, the 17 BIA reasoned that placing the burden of proof on the alien 18 to demonstrate that the marriage was nonetheless entered 19 into in good faith is consistent with the statutory 20 structure and intent. In re Mendes, 20 I. & N. Dec. at 1 See, e.g., Roos v. U.S. Attorney Gen., 167 F. App x 752, 755 (11th Cir. 2006) (unpublished disposition); Gaur v. Gonzalez, 124 F. App x 738, 741-42 (3d Cir. 2005) (unpublished disposition). 13 1 838. We conclude that the same is true when no valid joint 2 petition is ever filed. 3 may not necessarily demonstrate that the marriage was 4 entered into in bad faith, . . . . [but they are] bound to 5 raise the question as to whether that is the case. 6 And as compared with the government, the alien is in the 7 better position to answer that question. 8 United States, 365 U.S. 85, 96 (1961) (stating the ordinary 9 rule, based on considerations of fairness, does not place Divorce and failure to file jointly Id. Cf. Campbell v. 10 the burden upon a litigant of establishing facts peculiarly 11 within the knowledge of his adversary ); United States v. 12 Cont l Ins. Co., 776 F.2d 962, 964 (11th Cir. 1985) 13 (adhering to the common law guide that the party in the 14 best position to present the requisite evidence should bear 15 the burden of proof ); Miles Metal Corp. v. M. S. Havjo, 494 16 F.2d 563, 565 (2d Cir. 1974) (allocating burden of proof to 17 party that, in general is in a better position to come 18 forward with evidence). 19 20 III We have jurisdiction to review the legal question of 21 whether the immigration judge and the BIA applied an 22 erroneous legal standard in making a discretionary 14 1 determination. Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2 2007). 3 contention that the immigration judge and the BIA erred by 4 considering whether Boluk was a committed husband and by 5 relying upon the course of the marriage subsequent to the 6 wedding in ascertaining whether it was a good faith union at 7 the outset. Accordingly, we have jurisdiction to review Boluk s See Ibrahimi, 566 F.3d at 763. 8 As Boluk asserts, the central issue is whether the 9 couple intended to establish a life together at the time 10 they were married. 11 (8th Cir. 2009) (internal quotation marks omitted); see also 12 Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). 13 However, the INA s implementing regulations specifically 14 provide that the immigration judge may consider evidence 15 relating to the amount of commitment by both parties to the 16 marital relationship in assessing good faith: 17 18 19 20 21 22 23 24 25 26 27 28 Yohannes v. Holder, 585 F.3d 402, 405 In considering whether an alien entered into a qualifying marriage in good faith, the director shall consider evidence relating to the amount of commitment by both parties to the marital relationship. Such evidence may include-(i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined; (ii) Documentation concerning the length of time during which the parties cohabitated 15 1 2 3 4 5 6 7 8 9 10 8 C.F.R. § 1216.5(e)(2); see also In re Laureano, 19 I. & N. 11 Dec. 1, 2-3 (BIA 1983) ( The central question is whether the 12 bride and groom intended to establish a life together at the 13 time they were married. ). 14 conduct of the parties after marriage is relevant to their 15 intent at the time of marriage. 16 Dec. at 3. 17 consideration of the course of a relationship after a 18 wedding in order to ascertain an alien s intent at the time 19 he entered his marriage is entitled to deference. 20 266 F.3d at 102. 21 after the marriage and after the alien obtained permanent residence; (iii) Birth certificates of children born to the marriage; and (iv) Other evidence deemed pertinent by the director. The BIA has held that [t]he In re Laureano, 19 I. & N. The BIA s determination that the INA allows for Kuhali, It was therefore proper for the immigration judge to 22 attach significance to the course of the marriage post- 23 wedding: Boluk never supported Ms. Colangelo financially; 24 they had no joint bank account; they did not pay bills 25 together; they signed no joint lease; and they had no 26 children. 27 had the opportunity to live together, and were then J.A. at 95, 110. They separated soon after they 16 1 divorced. Cf. In re Velarde-Pacheco, 23 I. & N. Dec. 253, 2 256 (BIA 2002) (concluding alien submitted clear and 3 convincing evidence that his marriage is bona fide when 4 alien submitted, among other things, his marriage 5 certificate, his child s birth certificate, and 6 documentation demonstrating that he had known and lived with 7 his wife for years). 8 consider the course of the marriage, the record would 9 consist of little more than the bare fact of getting If the immigration judge had failed to 10 married, which reveals nothing regarding the motivation 11 for marriage. 12 Cir. 2011) (internal quotation marks and emphasis omitted). Sharma v. Holder, 633 F.3d 865, 873 (9th 13 The legal standard employed was thus proper and, 14 because our review is limited to this legal determination 15 and does not extend to the underlying factual 16 determination, we do not reevaluate the relative strength 17 of the evidence presented to the immigration judge. 18 Yohannes, 585 F.3d at 405 (internal quotation marks 19 omitted); see also Ibrahimi, 566 F.3d at 764 (determining 20 that jurisdiction exists only to evaluate a predicate legal 21 question in a challenge to an immigration judge s finding 22 that a marriage was not entered in good faith (internal 17 1 quotation marks omitted)). 2 IV 3 Finally, Boluk challenges the immigration judge s 4 failure to give any weight to the fact that Ms. Colangelo 5 traveled to Turkey to marry him. 6 amount of weight to be accorded any particular fact raises 7 no question of law and is accordingly not within this 8 Court s jurisdiction to review the agency s determination. 9 8 U.S.C. § 1252(a)(2)(D); see Contreras-Salinas v. Holder, 10 13 The 585 F.3d 710, 713-15 (2d Cir. 2009). 11 12 Pet r Br. at 8. CONCLUSION For the foregoing reasons, we deny Boluk s petition for review. 18
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