Mendes v. INS
Case Date: 11/29/1999
Court: United States Court of Appeals
Docket No: 99-1226
|
For the First Circuit ____________________ No. 99-1226 AGNELO MENDES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ____________________ PETITION FOR REVIEW OF THE DECISION BY THE BOARD OF IMMIGRATION APPEALS ____________________ Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge. _____________________ Jeremiah Friedman, with whom Maureen O'Sullivan, Harvey Kaplan, Ilana Greenstein and Kaplan, O'Sullivan & Friedman, LLP were on brief, for petitioner. William E. Michaels, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General and H. Bradford Glassman, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent. ____________________ November 24, 1999 ____________________ TORRUELLA, Chief Judge. This case involves three marriages, four separate visa petitions, and immigration proceedings spanning more than fifteen years. Petitioner Agnelo Mendes appeals from the decision of the Board of Immigration Appeals ("BIA") (1) to deny his Motion to Remand for adjustment of status to permanent resident under the Immigration and Nationality Act, 8 U.S.C. 245 (1996) ("INA"); (2) to affirm Immigration and Naturalization Service's ("INS") denial of the joint petition to remove conditional residence under section 216 of the INA; and (3) to affirm the INS's denial of suspension of deportation under INA 244(a), 8 U.S.C. 1254 (repealed by IIRIRA 308(b)(7), 110 Stat. 3009-615 (1996)). Pursuant to our recent opinion in Bernal-Vallejo v. INS, No. 99-1211, slip op. at 2 (1st Cir. Nov. 2, 1999), we hold that 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 10-208, div. C, 110 Stat. 3009-546 (IIRIRA), precludes jurisdiction over Mendes's claim that the BIA erred in finding that he has not demonstrated extreme hardship under INA 244. Although we have jurisdiction to review petitioner's due process challenge to the BIA's finding of deportability, judicial review is barred because the petitioner failed to exhaust his administrative remedies. Subsequent to the BIA's denial of the petitioner's Motion to Remand, the INS revoked the petitioner's visa, a necessary prerequisite to adjustment of status, rendering this issue moot. We give no further consideration to the scope of our jurisdiction to review the BIA's denial of the Motion at this time. I. Some background on the statutory and regulatory scheme for alien-citizen marriage is required to understand the pertinent facts of this case. Section 216 of the INA sets out the procedural requirements for acquiring lawful permanent resident status through a bona fide marriage to a United States citizen. After the citizen spouse files a visa petition and a petition for adjustment of status under INA 245(d), the alien spouse may be granted a two- year conditional lawful permanent resident status. See INA 216(a)(1). To remove the conditional status, the citizen and alien must file a joint petition (Form I-751) and appear for a personal interview. See INA 216(c)(1) & (d). Within 90 days, the INS must issue a determination as to whether the facts alleged in the petition are true with respect to the qualifying marriage. See INA 216(c)(3)(A). The burden at this stage is on the petitioner. If the joint petition is denied, the alien's conditional status is terminated, 216(c)(3)(C), and the alien is deportable under INA 241(a)(1)(D)(i). See Matter of Lemhammad, 20 I. & N. Dec. 316, 1991 BIA LEXIS 13, at *3. If the alien seeks review of the District Director's decision in the deportation proceeding, the burden of proof is placed on the INS to establish by a preponderance of the evidence that the facts in the petition are not true, in other words that the marriage was entered into for the purpose of procuring his entry as an immigrant. See 216(c)(3)(D); Matter of Lemhammad, 1991 BIA LEXIS at *11. For the sake of efficiency, we summarize the facts as follows. Petitioner Agnelo Mendes, a native and citizen of Cape Verde, first entered the United States on July 16, 1982, as a nonimmigrant visitor. His first marriage to U.S. citizen Indiana Burgo took place approximately three weeks later, on August 8, 1982, and produced a son on April 30, 1983. Although a visa petition was filed immediately, Burgo withdrew it, informing the INS that she and petitioner had married for immigration purposes. The petitioner was placed into deportation proceedings and was granted voluntary departure by October 25, 1983. Burgo filed a second visa petition, but it was denied based on the petitioner's failure to prove that he had a bona fide marriage. The BIA affirmed that decision on January 31, 1986. On December 28, 1985, the petitioner reentered the United States as a nonimmigrant visitor, with the alleged intention of resolving his marriage with Burgo, but they divorced. On November 2, 1987, the petitioner married U.S. citizen Renee Duarte, who filed a third visa petition on his behalf. On December 13, 1989, Duarte and the petitioner filed a joint petition to remove the conditional basis of his status (Form I-751), which is the subject of the instant appeal. The INS subsequently terminated the joint petition based on several inconsistencies in the information provided with the joint petition and in the personal interview. For example, Duarte could not identify friends of the petitioner who submitted affidavits on behalf of the couple; she was unfamiliar with her husband's bank account; there were facts in dispute with respect to the petitioner's rent and whether Duarte and his child ever resided with him; the couple failed to provide joint tax returns and the birth certificate for their child; and the petitioner did not acquire family medical coverage until 1990, despite the fact that Duarte was expecting a child and he had claimed one of his other children as a dependent in his tax returns. On March 29, 1993, the District Director informed the couple, [b]ecause of the absence of any convincing evidence showing the marriage to have been entered into in good faith, it is concluded that you have failed to sustain your burden to reverse a denial of the application before us and that your marriage was entered into for the sole purpose of securing an immigration benefit. As a result, INS terminated the petitioner's conditional resident status pursuant to 216(c)(3) and placed him in deportation proceedings for the second time. During the proceedings, the petitioner, who had separated from Duarte in 1990, became romantically involved with U.S. citizen Mar |