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Malave v. Holder

June 29, 2010


Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Easterbrook, Chief Judge.


Before EASTERBROOK, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Manuela Malave, a citizen of Nicaragua, was ordered removed from the United States after an immigration judge concluded that she had paid $1,000 to her ex-husband to enter into a sham marriage for the purpose of securing an immigration benefit. Malave applied for cancellation of removal under §202 of the Nicaraguan Adjustment and Central American Relief Act, 111 Stat. 2193, as amended by 111 Stat. 2644 (1997). Section 202 of NACARA is reproduced as a note following 8 U.S.C. §1255. But the IJ's finding of a sham marriage made her inadmissible under §212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(6)(C)(i), so §202(a)(1)(B) of NACARA precluded relief. The Board of Immigration Appeals dismissed her appeal in a brief order.

Section 202(f) of NACARA forbids judicial review of a decision denying a motion for adjustment of status, and the Attorney General asks us to dismiss Malave's petition. The parties have debated the interesting question whether 8 U.S.C. §1252(a)(2)(D), part of the Real ID Act, permits review of legal questions notwithstanding §202(f) of NACARA, but this is not a subject we need explore. For what §202(f) says is: "A determination by the Attorney General as to whether the status of any alien should be adjusted under this section is final and shall not be subject to review by any court." This does not bar review of the order of removal itself, as some sections of the Immigration and Nationality Act do. See, e.g., 8 U.S.C. §1252(a)(2)(C) ("no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title").

Malave contends that the order of removal is defective because the IJ did not hold a hearing that complies with 8 U.S.C. §1229a(b)(4)(B), which directs the agency to afford each alien "a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government". Section 202(e)(2) of NACARA requires the Attorney General to follow §1229a. A need to give every alien one complete hearing does not impinge on the Attorney General's plenary authority to decide whether, on a properly compiled record, the alien is entitled to adjustment of status. To the extent there is any ambiguity about the way in which §202(f) of NACARA interacts with the general grant of jurisdiction in §1252(a), we resolve it by "the presumption favoring judicial review of administrative action". Kucana v. Holder, 130 S.Ct. 827, 839 (2010).

Manuela Gaula married Jose Antonio Malave Cruz on August 8, 1996, and took his family name. Four months later, Jose filed an I-130 petition on her behalf, asking immigration officials to adjust her status to that of permanent resident on the basis of her marriage to a citizen. Manuela filed a corresponding I-485 petition. Afzal v. Holder, 559 F.3d 677 (7th Cir. 2009), discusses how this process works. In September 1997 Manuela and Jose were interviewed, both jointly and separately, by immigration officials. During the separate portion of this interview, Jose signed a statement that he had been paid $1,000 to marry Manuela. He withdrew his I-130 petition. The interview with Jose was not recorded, and Manuela did not see a copy of Jose's statement until 2002, when she obtained her immigration file under the Freedom of Information Act.

Manuela was taken into custody immediately after the interview with Jose ended but was released that evening.

She relates that an agent of the FBI told her that he had investigated, concluded that the marriage had been genuine, and informed immigration officials so. Despite releasing her, the agency commenced removal proceedings and denied her petition for adjustment of status as a citizen's spouse. Manuela says that she has been unable to locate Jose since the day of the interviews.

The removal proceeding was closed later in 1997 after Congress enacted NACARA, which provides for adjustment of status for citizens of Nicaragua who entered the United States before December 1, 1995, have been in this nation continuously since, and are not statutorily ineligible for admission. Manuela applied for the statute's benefits. She next heard from the agency in 2005, when it denied her application on the ground that a fraudulent marriage made her ineligible for admission and derivatively ineligible under NACARA. The agency then reinstituted removal proceedings.

A hearing began in December 2006 and was conducted in stages. During the first, the agency's lawyers offered two versions of Jose's statement. Both were in English, a language that Manuela says Jose does not understand. (She tells us that he was born and raised in Puerto Rico. Many U.S. citizens from that commonwealth understand only Spanish.) The first is handwritten, by a different hand than the signature, and reads:

Manuela Gaula gave me $1,000 to marry her so she could get her green card. I never lived with her & never slept or had sex with her. I don't even know her address but I do know the street name, Delaware.

The second, which is typed, reads:

[Manuela] offered me $1,000. She never told me it was illegal and I did not realize it was wrong until after we were married, on August 8, 1996 in Lake County at the courthouse in Waukegan. The[] day we married she paid me the $1,000 cash. There was no other person involved in our arrangement and there were no witnesses at the marriage. We never dated or had any romantic involvement. I think she lives with a man she is not married to and I think their address is 1928 Delaware, Waukegan. We came to the Immigration office today for our interview and the officer who interviewed us . . . said that it could ...

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