On a Petition For Review of a Decision of the Board of Immigration Appeals (Agency No. A44-040-186).
Submitted Under Third Circuit LAR 34.1(a) April 14, 2006
Before: MCKEE, FUENTES and NYGAARD, Circuit Judges.
Petitioner Dominga Cabrera-Perez, a native and citizen of the Dominican Republic, entered the United States in April 1991 on a visitor's visa. She married Jorge Perez-Rosario, an American citizen, in the Bronx in December of that year. Mr. Perez filed an adjustment of status application on her behalf, and, following an interview at the United States Embassy in the Dominican Republic, Cabrera became a lawful permanent resident on a conditional basis pursuant to Immigration and Nationality Act ("INA") § 216(a), 8 U.S.C. § 1186a(a) (1993).*fn1 She was admitted to the United States with that status on March 24, 1993. A.R. 139.*fn2
Mr. Perez died on December 6, 1993. The conditional permanent resident statute, INA § 216, provides at subparagraphs (c) and (d) that, in order for the conditional basis to be removed, the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General a petition which states that the marriage, in sum and substance, was not entered into for the purpose of gaining an alien's entry as an immigrant. 8 U.S.C. § 1186a(c)(1)(A), (d)(1). The alien spouse and the petitioning spouse (if not deceased) must also appear before immigration authorities for a personal interview. 8 U.S.C. § 1186a(c)(1)(B). The usual time for filing the petition under INA § 216(d)(2)(A), 8 U.S.C. § 1186a(d)(2)(A), is 90 days before the second anniversary of gaining status.
Cabrera did not petition for removal of the conditional basis of her status as required by INA § 216(c) during this time period. Accordingly, her conditional permanent resident status was terminated effective March 25, 1995, the day after the second anniversary of gaining her status. Cabrera was issued a termination notice by the Immigration and Naturalization Service ("INS"), dated January 23, 1996, which stated that she and Mr. Perez had failed to jointly petition for removal of the conditional status as follows:
In accordance with the provisions of Section 216(c) of the Immigration and Nationality Act you and your spouse through whom you obtained your conditional permanent residence were required to file a joint petition requesting removal of the conditional basis of your residence between 12/24/94 and 03/24/95. As of this date, no such petition has been filed. Therefore, in accordance with the provisions of Section 216(c)(2)(A) of the Immigration and Nationality Act, the permanent resident status previously accorded you is hereby terminated as of 03/25/95.
On November 13, 1997, Perez filed an I-751 Petition to Remove Conditions on Residence, seeking a waiver of the joint filing requirement because her husband was deceased. A.R. 93, 249.*fn4 A certificate of death was submitted with the application. Inexplicably, Mr. Perez' mother, the informant on the Death Certificate, had listed Mr. Perez' marital status as "unmarried." A.R. 138. On May 11, 1999, the District Director denied the application, concluding that Cabrera had not entered into the marriage in good faith.
The District Director found the Death Certificate, with its erroneous information, to be probative of the question whether the marriage was entered into in good faith, and did not believe that there was a logical basis for Cabrera's mother-in-law to inform the person who filled out the death certificate that her son had never been married. In addition, Cabrera had failed to submit adequate historical documentation and had failed to appear for a scheduled interview. The decision concludes with an apparent misstatement that "[I]t is obvious that that [sic] your marriage to Jorge Perez was for reasons other than to procure your entry to the United States as an immigrant." A.R. 141-42. Removal proceedings were initiated against Cabrera with service of Notice To Appear on June 2, 1999, charging her as removable under INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i), as an alien whose permanent residence status on a conditional basis was terminated.
It was, of course, undisputed that Cabrera and Perez were married. In fact, Mr. Perez had been married twice before, according to their marriage certificate. A.R. 131. Cabrera obtained counsel, and through him, she submitted a persuasive motion to reopen her I-751 waiver petition. She submitted her marriage certificate, Mr. Perez' 1988 divorce decree, A.R. 132-33, a photograph of the happy couple (if body language is any indicator) on a New York City Circle Line tour, A.R. 134, and a statement concerning the proposed testimony of three witnesses in support of Cabrera's contention that her marriage had been entered into in good faith and was legitimate. A.R. 129, 257. On April 17, 2000, Immigration Judge Nicole Y.K. Kim granted the motion and ordered that proceedings be reopened for adjudication of the I-751 waiver petition. The matter was remanded to the District Director. A.R. 70.
On September 24, 2001, Cabrera appeared for her personal interview. However, on March 11, 2002, the District Director again denied her waiver petition, essentially for the same reasons it originally was denied. A.R. 249-251. Again, the District Director did not believe there was a logical basis for Cabrera's mother-in-law to report that her son had never been married, and, again, she opined that there was a lack of historical documentation and a failure to appear for the scheduled interview. Again the decision includes the misstatement that ...