15-1321
    Cruz v. Sessions
                                                                                               BIA
                                                                                         Straus, UJ
                                                                                      A079 076 335



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 24th day of February, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                RICHARD C. WESLEY,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    ESTHER FRANCISCA CRUZ,

                             Petitioner,

                       v.                                                         15-1321

    JEFF SESSIONS, UNITED STATES
    ATTORNEY GENERAL,

                      Respondent.
    _____________________________________

    For Petitioner:                           MARY FODEN, De Castro Foden, Hartford, CT.

    For Respondent:                           Benjamin C. Mizer, Assistant Attorney General;
                                              Shelley R. Goad, Assistant Director; TIM RAMNITZ,
                                              Attorney, Office of Immigration Litigation, United
                                              States Department of Justice, Washington, DC.
         UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED.

         Petitioner Esther Francisca Cruz, a native and citizen of Peru, petitions for review of a

March 26, 2015, decision of the BIA affirming the November 15, 2012, decision of an

Immigration Judge (“IJ”), ordering her removed and affirming the denial by U.S. Citizenship and

Immigration Services (“USCIS”) of her joint petition to remove the conditions on her residence.

In re Esther Francisca Cruz, No. A079 076 335 (B.I.A. Mar. 26, 2015), aff’g No. A079 076 335

(Immig. Ct. Hartford Nov. 15, 2012). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

         Under the circumstances of this case, we have reviewed both the BIA’s and IJ’s decisions

“for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 

, 528 (2d

Cir. 2006). We review the agency’s factual findings for substantial evidence, and we review

questions of law and the application of law to undisputed fact de novo. See 8 U.S.C.

§ 1252(b)(4)(B); see also Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009). Under

substantial evidence review, we treat the agency’s factual findings as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 

, 289 (2d Cir.

2007).

         The Immigration and Nationality Act (INA) provides that an alien who obtains

permanent resident status based on marriage to a U.S. citizen is considered to have obtained such

status on a conditional basis. 8 U.S.C. § 1186a(a)(1). To remove the conditions, the alien and the

U.S.-citizen spouse must jointly petition by filing a Form I-751 with the Secretary of Homeland

Security during the 90-day period before the second anniversary of the grant of conditional

permanent residency and must appear for an interview. 

(d)(2)(A). If the
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agency determines that the stated facts and information associated with the joint petition are not

true, the agency terminates the permanent resident status of the alien spouse. 

If the joint petition is denied, “the conditional resident may request review of

that determination in a removal proceeding.” Boluk v. Holder, 

, 302 (2d Cir. 2011);

8 U.S.C. § 1186a(c)(3)(D). The burden of proof is on the Government in such a proceeding “to

establish, by a preponderance of the evidence, that the facts and information [contained in the

joint petition] are not true with respect to the qualifying marriage.” 

(quoting 8 U.S.C. § 1186a(c)(3)(D)).

       The agency correctly determined that the Government met its burden to show that “the

facts in [Petitioner’s joint] petition were untrue” regarding her marriage, and that the petition was

properly denied by USCIS, based on the following factual findings that are supported by

substantial evidence. See CAR 4, 995; see generally 8 U.S.C. § 1252(b)(4)(B).

       First, the agency reasonably determined that Petitioner concealed that the home she

supposedly lived in with her husband Hector (“the Freeman Street Property”) was jointly owned

by her and the man who fathered her three children in Peru, Mario Levano, and that Hector Cruz

altered a lease agreement to conceal that Petitioner and Levano owned the property together. See

Siewe v. Gonzales, 

, 168–69 (2d Cir. 2007) (“[R]ecord support for a contrary

inference — even one more plausible or more natural — does not suggest error . . . . So long as

an inferential leap is tethered to the evidentiary record, we will accord deference to the

finding.”). This determination was supported by Petitioner’s subsequent testimony that she

bought the Freeman Street Property with Levano in August 2005, Petitioner’s omission of that

information from her joint petition, and Hector Cruz’s admission that he created the fraudulent

lease by duplicating another lease preceding Petitioner and Levano’s purchase of the home and

altering the dates to cover the period during which Petitioner and Levano already owned the

home. The IJ was not compelled to credit Petitioner’s explanation that Hector Cruz submitted all
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of the documents to USCIS and reasonably found both that Petitioner concealed her and

Levano’s joint ownership of the Freeman Street Property and that Hector Cruz’s explanation for

the altered lease was not credible. See 

cf. Majidi v. Gonzales, 

, 80 (2d

Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled

to credit his testimony.” (internal quotation marks omitted)).

       Second, the agency reasonably found that, during her 2006 interview, Petitioner was not

honest with USCIS about whether Levano lived in the United States. See 

–69. This determination was supported by the USCIS officer’s testimony and

contemporaneous notes, which reflect that Petitioner stated that Levano “resides in Peru.”

Petitioner’s explanation — that she was asked only about Levano’s then-current location and her

daughters had told her he was traveling in Peru — was not compelling because it did not explain

the discrepancy in the USCIS officer’s notes and was consistent with her attempt to hide the fact

that she and Levano bought a house together. See 

cf. 

.

       Third, the agency reasonably found that Petitioner and Hector Cruz provided different

addresses for their marital home. See 

–69. This determination was

supported by their submitted tax records, which listed various addresses among Petitioner’s and

Hector Cruz’s W-2s and their joint tax returns. When asked about these discrepancies, Hector

Cruz testified that he put his friend’s address on his W-2s to avoid harassment because he had

bad credit, which contradicted Petitioner’s testimony that the address belonged to Hector Cruz’s

sister. The IJ was not compelled to credit these inconsistent explanations. See 

cf.

.

       Petitioner’s argument that the IJ improperly placed the burden of proof on her to prove

that her marriage was bona fide is contradicted by the record. She also argues that she was

denied due process by the consolidation of her case with Levano’s. We disagree. “[I]t is within
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the power of the immigration judge to consolidate proceedings, if such consolidation does not

serve to deny the respondent the right to fully and clearly litigate his claims.” Matter of

Taerghodsi, 16 I. & N. Dec. 260, 263 (B.I.A. 1977). Further, “[p]arties claiming denial of due

process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly

attributable to the challenged process.” Garcia-Villeda v. Mukasey, 

, 149 (2d Cir.

2008) (internal quotation marks omitted). Petitioner contends that Levano’s testimony influenced

the IJ’s 2011 decision and therefore denied her a fair hearing. However, Petitioner received a full

and fair opportunity to challenge the denial of her joint petition and, as explained above, each of

the agency’s factual findings is supported entirely by the testimony of Petitioner and Hector Cruz

and the documents submitted in support of their joint petition. Petitioner has therefore failed to

show that she was prejudiced by the IJ’s decision to consolidate the cases. 

.

       We decline to consider Petitioner’s unexhausted argument that the IJ improperly adopted

his reasoning from a prior decision. See Lin Zhong v. U.S. Dep’t of Justice, 

, 123

(2d Cir. 2007) (providing that judicially imposed issue exhaustion is mandatory for petitions for

review from the BIA).

       For the foregoing reasons, the petition for review is DENIED. As we have completed our

review, any stay of removal that the Court previously granted in connection with this petition is

VACATED, and any pending motion for a stay of removal in connection with this petition is

DISMISSED as moot.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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