Cruz v. Sessions
681 F. App'x 55
| 2d Cir. | 2017Background
- Petitioner Esther Francisca Cruz, a Peruvian national, filed a joint I-751 to remove conditions on her permanent residency based on marriage to U.S. citizen Hector Cruz; USCIS denied the petition and removal proceedings followed.
- The BIA affirmed an IJ’s 2012 removal order; Cruz petitioned this Court for review (Second Circuit).
- USCIS and the IJ found Cruz concealed that she co-owned the Freeman Street property with Mario Levano (father of her children in Peru) and that Hector submitted an altered lease to hide that ownership.
- Evidence included Cruz’s testimony she bought the home with Levano in 2005, Hector’s admission he duplicated/altered a prior lease, and inconsistent W-2/tax addresses for the couple.
- USCIS officer notes from a 2006 interview recorded Cruz as saying Levano “resides in Peru,” which the agency found inconsistent with other evidence and indicative of concealment.
- The agency concluded the government met its burden in removal proceedings to prove, by a preponderance, that the joint-petition facts were untrue; the Second Circuit denied review.
Issues
| Issue | Cruz's Argument | Sessions' Argument | Held |
|---|---|---|---|
| Whether agency correctly found petitioner concealed joint ownership of home and that lease was altered | Cruz: Hector submitted documents; she did not conceal ownership; explanations plausible | Govt: Record shows Cruz omitted ownership, Hector admitted altering lease; evidence disproves petition facts | Held for Govt: substantial evidence supports concealment and altered lease findings |
| Whether Cruz misrepresented Levano’s residence in 2006 interview | Cruz: She was asked only about Levano’s current location; daughters said he was traveling | Govt: USCIS notes show Cruz said Levano resides in Peru; inconsistent with other evidence of concealment | Held for Govt: agency reasonably credited officer notes; Cruz’s explanation not compelling |
| Whether inconsistent addresses undermined credibility of joint residence claim | Cruz: Address explanations differed but were innocent (sister’s address, etc.) | Govt: W-2s and tax returns show varying addresses; Hector’s explanations conflicting | Held for Govt: discrepancies supported inference marriage not bona fide |
| Whether consolidation with Levano’s case or alleged borrowing of a prior decision denied due process | Cruz: Consolidation and IJ reliance on prior decision prejudiced her and shifted burden | Govt: Consolidation permitted; no cognizable prejudice; burden remained on Govt in removal review | Held for Govt: no due-process violation; petitioner failed to show prejudice; exhaustion rule bars claim about adopting prior reasoning |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (standard for reviewing both BIA and IJ decisions)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standard for review of legal questions)
- Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281 (2d Cir. 2007) (substantial-evidence review of agency factual findings)
- Boluk v. Holder, 642 F.3d 297 (2d Cir. 2011) (government’s burden in removal proceeding to show joint-petition facts untrue)
- Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) (deference to agency inferences tethered to record)
- Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) (credibility: petitioner must show a reasonable fact-finder compelled to credit testimony)
- Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008) (need to show prejudice to prevail on due-process claim in immigration proceedings)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (mandatory issue-exhaustion for BIA review)