Gerardo Hernandez Lara v. Loretta E. Lynch, 789 F.3d 800

Background

Hernandez, a Mexican national, married U.S. citizen Diana Winger in 1988, obtained conditional resident status, but never completed the joint I-751 interview to remove conditions.
The couple missed scheduled joint interviews in 1990 and 1992; records show joint tax returns for 1988–89 and intermittent cohabitation and reconciliation attempts.
In 2008 Hernandez filed an I-751 seeking a discretionary waiver (good‑faith marriage) after divorce and long delay; USCIS denied the waiver for lack of documentation and terminated his conditional residency, initiating removal proceedings.
At removal hearing Hernandez testified (through a translator) that he married for love, not immigration, and presented limited corroboration (friend testimony, letters, tax records); the government presented no rebuttal evidence.
The IJ denied the waiver as Hernandez failed to prove by a preponderance that the marriage was bona fide, citing vagueness and inconsistencies in his evidence; the BIA assumed Hernandez credible on appeal but nevertheless held he failed to meet the preponderance standard.
The Seventh Circuit reviewed whether the BIA applied an overly stringent evidentiary standard and remanded, concluding that credible testimony that one married for love can satisfy the preponderance standard and the BIA erred by requiring more corroboration.

Issues

Issue	Hernandez's Argument	Government's Argument	Held
Whether the BIA applied the correct evidentiary standard (preponderance) for proving a good‑faith marriage waiver	The BIA applied a heightened burden, demanding more corroboration despite assuming Hernandez credible; credible testimony that he married for love meets preponderance	The evidence was insufficient—there was "little or no evidence" and gaps that justified denial; REAL ID Act permits requiring corroboration	Court held BIA applied too high a burden; if testimony is credited, it alone can satisfy preponderance and remand is required
Whether Hernandez waived the argument that the BIA misapplied the standard	Hernandez preserved and repeatedly argued the preponderance‑standard claim in briefs	Govt. contended Hernandez waived the issue by not raising it properly	Court found Hernandez preserved the argument; no waiver
Whether the IJ implicitly discredited Hernandez such that BIA could rely on IJ credibility	Govt. and IJ suggested inconsistencies showing lack of credibility	Govt argued IJ credibility findings support denial	Court found IJ’s decision ambiguous on credibility and BIA explicitly assumed credibility, so court could not rely on any implicit IJ credibility finding
Applicability of REAL ID Act corroboration rule to justify denial despite credited testimony	Hernandez argued REAL ID corroboration rule was not invoked by IJ/BIA as the basis for denial	Govt. argued REAL ID allows requiring corroboration even for credible testimony	Court held REAL ID provision was not relied upon by IJ/BIA and government may not defend on new grounds (Chenery problem)

Key Cases Cited

Lopez-Esparza v. Holder, 770 F.3d 606 (7th Cir.) (preponderance‑standard discussion; remand where wrong standard applied)
Am. Grain Trimmers, Inc. v. Office of Workers' Comp. Programs, 181 F.3d 810 (7th Cir. en banc) (one credible witness can outweigh documentary record under preponderance)
SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency cannot defend decision on new grounds not stated in original decision)
Boadi v. Holder, 706 F.3d 854 (7th Cir.) (jurisdictional discussion re: reviewability when legal standard is claimed to be incorrect)
Bouras v. Holder, 779 F.3d 665 (7th Cir.) (discretionary waiver generally unreviewable except for legal errors)
Liu v. Holder, 692 F.3d 848 (7th Cir.) (REAL ID corroboration jurisprudence discussion)
Tandia v. Gonzales, 487 F.3d 1048 (7th Cir.) (corroboration requirement relevance and limits)
Chen v. Holder, 715 F.3d 207 (7th Cir.) (cannot rely on IJ credibility when BIA assumed credibility on appeal)