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Juan Fernando Restrepo v. Eric H. Holder

April 12, 2012



The opinion of the court was delivered by: Torruella, Circuit Judge.

Before Torruella, Circuit Judge, Souter,*fn1 Associate Justice, and Boudin, Circuit Judge.

Juan Fernando Restrepo ("Restrepo"), a native and citizen of Colombia, asks us to review a decision of the Board of Immigration Appeals ("BIA") denying his application for cancellation of removal under Section 240A(b) of the Immigration and Nationality Act ("INA"). After carefully considering Restrepo's claims, we deny his petition for review.

I. Background

Restrepo entered the United States on or about September 24, 1988 as a visitor with permission to remain in the country until March 23, 1989. Restrepo overstayed his visa and, in 1990, married his wife, Maria, a fellow Colombian national. In the ensuing years, the couple settled in the United States and had two children.

According to Restrepo, by 1995, all was not well between the couple -- Restrepo was unfaithful and Maria discovered his infidelity. Restrepo soon moved out of the family home in Pawtucket, Rhode Island and moved in with his sister.

In February 1996, Restrepo's father petitioned for an immigrant visa (Form I-130) on Restrepo's behalf. Restrepo's father filed his petition under section 203(a)(2)(B) of the INA, 8 U.S.C. § 1153(a)(2)(B), which permits "unmarried sons or unmarried daughters" of an alien who has been lawfully admitted for permanent residence in the United States to obtain a visa. The petition was approved on September 10, 1996, despite the fact that Restrepo and Maria, though separated, were still married at the time.

Restrepo and Maria finalized their divorce just one month later, in October 1996. That same month, Maria married Carlos Rios ("Rios"), a U.S. citizen. Subsequently, Rios filed an immigrant visa petition for Maria and she eventually attained lawful permanent resident ("LPR") status as Rios's spouse.

At some point in 1999, Maria and Restrepo ostensibly reconciled their differences. In 2000, the couple had a third child, though Maria and Rios were still married at the time. Maria eventually divorced Rios in September 2001 and remained with Restrepo thereafter, remarrying him on March 14, 2004.

Also in September 2001, Restrepo -- who still held the immigrant visa that he obtained in September 1996 -- filed to adjust his status to that of LPR. The relevant paperwork, it seems, raised bureaucratic eyebrows: on May 3, 2004, the Department of Homeland Security denied Restrepo's request for adjustment and revoked his immigrant visa once it determined that, since Restrepo was still married to Maria in September 1996, he was ineligible for the visa at the time his father filed an immigrant visa petition on his behalf. The government set Restrepo's removal proceedings in motion on the same day.

Restrepo conceded removability, but applied for cancellation of removal under INA § 240A(b) and voluntary departure under INA § 240B. See 8 U.S.C. §§ 1229b-c. Over the next few years,*fn2 Restrepo submitted evidence in support of his application for cancellation, including letters and affidavits prepared on his behalf. Restrepo and Maria also testified at hearings held before an immigration judge ("IJ") in July 2008 and February 2009.

The IJ denied Restrepo's application for cancellation of removal on February 18, 2009. In denying Restrepo's application, the IJ found that Restrepo had failed to show that he was a "person of good moral character" while living in the United States, see 8 U.S.C. § 1229b(b)(1)(B), insofar as facts did not suggest that his 1996 divorce from Maria "was anything other than a sham to enable him to adjust status on the basis of the visa petition that his father had submitted for him." Explaining her reasoning, the IJ noted that Restrepo had a third child with Maria while she was married to Rios and underscored her belief that Maria had given "conflicting information" about her reasons for divorcing Rios. Most critically, the IJ expressed grave concerns about the fact that Restrepo remarried Maria, by then an LPR, less than two months before his petition for adjustment of status was denied and his visa revoked. The IJ found this timing "disturbing" and "significant" because neither the letters nor the affidavits that various people submitted to support Restrepo's application for cancellation of removal mentioned that he was divorced and later remarried. The IJ also noted that one of Restrepo's daughters, who testified at his hearings, did not mention having suffered emotional problems as a result of the divorce. Additionally, the IJ noted that although testimony suggested that Restrepo was an avid churchgoer, his pastor was "unaware that [Restrepo] and [Maria] were divorced and did not remarry for over four years after they began living together again."

Going further, the IJ also concluded that Restrepo and Maria had provided false testimony before the immigration court to the extent that they stood by their claims that they divorced for legitimate reasons not related to obtaining immigration benefits. The IJ cited the timing of the purported marital falling out and divorce -- i.e., the fact that the couple separated just before Restrepo's father filed a visa application on his behalf -- and Maria's marriage to Rios, a U.S. citizen, shortly thereafter as supportive of her conclusion. The IJ also noted that Maria remembered peculiarly little about her marriage to Rios and could not show that she ever lived with him. In light of the "significant disruption" that Restrepo's removal would cause on his family, the IJ stated that she might have been willing to give him the benefit of the doubt if Restrepo had come clean as to the true immigration status adjustment-related motives behind the couple's divorce. Ultimately, however, the IJ explained that she could hardly overlook the fact that Restrepo not only engaged in a sham divorce, but also offered false information in his adjustment filings and in his testimony to the court. Accordingly, the IJ determined that, as a person lacking good moral character, Restrepo was statutorily barred from obtaining either cancellation of removal or voluntary departure.

Restrepo appealed and the BIA affirmed the IJ's decision on May 24, 2010. See In re Juan Fernando Restrepo, No. A079-738-001 (B.I.A. May 24, 2010). The BIA noted that it was required to accept the IJ's factual determinations unless they were clearly erroneous. See 8 C.F.R. ยง 1003.1(d)(3)(i) (BIA "will accept the determination of factual issues by an immigration judge . . . unless the determination is clearly erroneous"). The BIA then recounted the evidence the IJ used to buttress ...

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