Cabrera v. Lynch
805 F.3d 391
| 1st Cir. | 2015Background
- Cabrera, a Dominican Republic native, entered the U.S. in January 1991 and married a U.S. citizen in 1991.
- She obtained conditional permanent resident status on June 25, 1993, and sought to remove the condition via a joint I-751 petition.
- The joint petition was denied on August 8, 1997 for marriage fraud, terminating her conditional residency; she did not seek review.
- Cabrera and her spouse divorced, with a final decree entered June 18, 1999.
- In October 2000 removal proceedings began; in 2001 she filed a waiver petition under § 1186a(c)(4) alleging good faith in the marriage.
- USCIS denied the waiver on October 5, 2006, relying on the prior marriage-fraud finding; the merits of waiver were not considered.
- In April 2012, at a merits hearing, the IJ denied the waiver petition and found her ineligible for cancellation of removal; the BIA affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof and scope of review at waiver hearing | Cabrera asserts IJ reviewed the wrong petition and shifted burden. | Lynch argues Cabrera was bound by her strategic choice to pursue waiver review only. | No error; bound by strategic waiver review decision. |
| Eligibility for cancellation of removal under § 1229b(a) | Cabrera contends she met criteria and should be eligible for cancellation. | Government maintains she lacked five years’ lawful permanent residence and status was terminated. | BIA/IJ correctly held Cabrera ineligible for cancellation. |
Key Cases Cited
- Reynoso v. Holder, 711 F.3d 199 (1st Cir. 2013) (discusses removal procedures for conditional residents)
- Moreno v. Holder, 749 F.3d 40 (1st Cir. 2014) (standard of review in immigration cases where BIA adds gloss)
- Xian Tong Dong v. Holder, 696 F.3d 121 (1st Cir. 2012) (treats BIA and IJ decisions as a unit when BIA affirms with explanation)
- McKenzie-Francisco v. Holder, 662 F.3d 584 (1st Cir. 2011) (burden on alien to prove good faith in waiver petitions)
- In re Ayala-Arevalo, 22 I&N Dec. 398 (BIA 1998) (discusses status of conditional permanent residents)
- Gallimore v. Attorney General, 619 F.3d 216 (3d Cir. 2010) (limits of equating conditional and full permanent residency under §1186a)
- Padilla-Romero v. Holder, 611 F.3d 1011 (9th Cir. 2010) (cancellation requires current lawful permanent resident status)