SELYA,
Circuit Judge. The petitioner, José Luís McKenzie-Francisco, is a native and
citizen of the Dominican Republic. He seeks judicial review of a final order of
the Board of Immigration Appeals (BIA) refusing to remove a condition
encumbering his resident status and mandating his removal to his homeland. After
careful consideration, we deny the petition.
The stage can quickly be set. In 1999, the petitioner entered the United States
without inspection. He married Jennifer Ann Cordero Estrella (Cordero), a United
States citizen, on March 23, 2001. As a result, the government granted him
conditional resident status. See 8 U.S.C. § 1186a(a)(1).
The marriage did not last. The couple divorced in early 2004 (while the
petitioner was still a conditional resident). The petitioner nonetheless sought
to remove the condition within the prescribed two-year period. See id. §
1186a(d)(2).
Because the divorce prevented him from submitting the standard joint petition
for removal of the condition, see id.§ 1186a(c)(1), (d)(1), he applied for a
hardship waiver of the petition requirement, see id. § 1186a(c)(4)(B). In
furtherance of this waiver request, he represented that his failed marriage had
been entered into in good faith. The waiver request did not farewell. The
appropriate immigration authorities denied it; terminated his lawful resident
status, see id. § 1186a(c)(2)(A); and initiated removal proceedings against him,
see id. § 1227(a)(1)(D)(i).
In the immigration court, the petitioner renewed his waiver request. The
immigration judge (IJ) received documentary evidence and heard testimony from
both the petitioner and his ex-wife. At the close of all the evidence, the IJ
concluded that the marriage had not been entered into in good faith and denied
the waiver. She then ordered that the petitioner be removed to the Dominican
Republic.
Discerning no error, the BIA affirmed the IJ's decision. This timely petition
for judicial review followed.
The petitioner's main argument is that the IJ erred in finding that the marriage
was a sham. As a secondary matter, he upbraids the IJ for stating that the sole
purpose of the marriage was to circumvent the immigration laws. In the
petitioner's view, this ipse dixit has unfair collateral consequences and
implicates his due process rights because he had no notice that his motivation
would be in issue. We address these arguments sequentially, pausing first to
sketch some of the governing legal principles.
In immigration cases, we review the agency's findings of fact in accordance with
the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57
(1st Cir. 2011).
Consequently, we will honor such findings as long as they are "supported by
reasonable, substantial and probative evidence on the record considered as a
whole." Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). A credibility determination is a finding of fact, and
we will set aside such a determination only if "the evidence is such as would
compel a reasonable fact finder to reach a contrary conclusion." Id. We review
conclusions of law de novo but with some deference to the agency's founded
interpretation of statutes and regulations that it administers. Mariko v.
Holder, 632 F.3d 1,5 n.2 (1st Cir. 2011).
We turn from these general norms to the particular legal framework that pertains
here. In order to convert conditional residency status into permanent residency
status by virtue of marriage to a United States citizen, an alien and his
citizen spouse must first submit a joint petition. 8 U.S.C. § 1186a(c)(1)(A);
see also Castro-Soto v. Holder, 596 F.3d 68, 70 (1st Cir. 2010). If the alien is
unable to do so because of an intervening divorce, he must secure a hardship
waiver. 8 U.S.C. § 1186a(c)(4)(B). The availability of such a waiver depends in
part on the alien's ability to demonstrate that he had entered into the marriage
in good faith. Id.
The alien has the burden of proof on this issue. See Boluk v. Holder, 642 F.3d
297, 301-02 (2d Cir. 2011); see also 8 U.S.C. § 1186a(c)(4). To carry this
burden, he must show that, at the time that the newlyweds plighted their troth,
he intended to establish a life with his spouse. See Cho v. Gonzales, 404 F.3d
96, 102 (1st Cir. 2005). Employing this framework, we find ample support in the
record for the determination that the petitioner's marriage was not contracted
in good faith.
The IJ based her determination primarily on glaring contradictions in the
divorced spouses' accounts of how their wedding was celebrated. These
contradictions went to the heart of the matter because when a man and woman
enter into a good-faith marriage, their wedding day is a significant (and,
therefore, memorable) event.
In the case at hand, the petitioner and Cordero gave vastly divergent
descriptions of their wedding day. The petitioner testified that their decision
to wed was made on the spur of the moment and without any advance planning; that
Cordero's parents were neither invited to nor present at the wedding; and that
the participants, the minister, and two legally required witnesses were the only
people in attendance. Cordero flatly contradicted this account. She vouchsafed
that the couple had set the date in advance and had planned the wedding for a
period of time. She also testified that her parents, along with her daughter and
several of the petitioner's friends, were in attendance. The IJ inferred from
these major inconsistencies that neither the petitioner nor his ex-wife were
credible witnesses.
Here, moreover, other testimony about the couple's relationship contributed to
the IJ's doubts. For example, the petitioner claimed to have courted Cordero
while she was living with her sister but could not remember how many
live-at-home children Cordero's sister had. He also could not recall either the
name of Cordero's child from a previous relationship or where Cordero worked.
The petitioner's lack of familiarity with such rudimentary facts is powerful
evidence that the couple never intended to establish a life together.
This web of inconsistencies and gaps in knowledge defies explanation. What is
even more telling, however, is that the IJ observed a pas de deux that erased
any doubts about the couple's lack of veracity. During Cordero's testimony, the
IJ caught the petitioner signaling to Cordero by shaking his head. This was a
blatant attempt to influence a witness's testimony by improper means and, as
such, strongly supports an adverse credibility determination. See Falae v.
Gonzáles, 411 F.3d 11, 15 (1st Cir. 2005).
The petitioner seeks refuge in the extrinsic evidence —but this evidence is
thin. It is, for example, lacking the type of memorabilia that marriages
typically produce. What evidence is in the record is a mixed bag. For instance,
despite the fact that the petitioner and Cordero filed joint income tax returns
in 2001 and 2003, they presented no evidence that their finances were
commingled.
To say more on this point would be to paint the lily. Given the contents of the
record, we are confident that the adverse credibility determination passes
muster under the substantial evidence test. See, e.g., Syed v. Ashcroft, 389
F.3d 248, 252 (1st Cir. 2004); see also 8 U.S.C. § 1252(b)(4)(B). With that
determination in place, the record scarcely compels a conclusion that the
petitioner's marriage to Cordero was entered into in good faith. Accordingly,
the hardship waiver was appropriately denied. We need not linger long over the
petitioner's plaint that his due process rights were compromised. This plaint is
hopeless. The petitioner put the bona fides of his marriage in issue by
requesting a hardship waiver. In view of this request, he cannot credibly
complain that he lacked notice that the question of his intentions would be
adjudicated.
We need go no further. For the reasons elucidated above, we deny the petition
for judicial review.
So Ordered.