Jing Lin v. Holder
759 F.3d 110
1st Cir.2014Background
- Jing Lin, a Chinese citizen, obtained conditional permanent residency in Feb 2002 based on marriage to U.S. citizen Thai Baotai Huynh; marriage was arranged while Lin was in China to facilitate her move to the U.S.
- The spouses lived apart for most of the marriage: married during a single five-week visit, then separate residences (Lin in Rhode Island; Huynh in Indiana) with about four months of cohabitation in California during which Huynh was frequently absent.
- Lin and Huynh filed joint tax returns for 2002 and 2003 but produced little other documentary proof of marital commingling or shared life (no joint bank accounts, etc.).
- Lin began an extramarital affair in 2003; Huynh discovered Lin’s pregnancy by another man in Feb 2004, leading to separation and divorce finalized in 2009.
- After the divorce, Lin’s joint-petition to remove conditions was denied; she sought a waiver under 8 U.S.C. § 1186a(c)(4)(B) claiming the marriage was entered in good faith. The IJ and BIA denied the waiver and ordered removal; Lin petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lin entered the marriage in good faith for purposes of waiver under 8 U.S.C. § 1186a(c)(4)(B) | Lin: marriage was a bona fide relationship; long-distance calls, visits, and joint tax returns support good-faith intent; Cho is analogous | Gov: evidence shows arrangement to secure U.S. entry, minimal cohabitation, lack of shared financial life, limited knowledge of spouse — supports lack of good-faith intent | Court: Substantial evidence supports BIA/IJ that Lin failed to prove good faith; petition denied |
| Whether post-marriage conduct (affair) was too remote to bear on intent at marriage | Lin: affair began years after marriage and is temporally remote; should not be probative of intent at marriage | Gov: affair is probative along with other evidence; even without affair other factors suffice | Court: Even if affair were given little weight, other record evidence independently supports denial |
| Whether BIA/IJ improperly relied on credibility findings or unraised arguments | Lin: IJ’s credibility discussion requires reversal; raised other arguments not adopted below | Gov: Court lacks jurisdiction over issues not presented to BIA | Court: Lacks jurisdiction to consider arguments not raised before BIA; those claims disregarded |
| Whether Cho v. Gonzales compels a different result | Lin: facts are similar to Cho, which favored petitioner | Gov: Cho is distinguishable on visits, family meetings, cohabitation length, and documentary evidence | Court: Cho distinguishable; BIA decision stands |
Key Cases Cited
- Kinisu v. Holder, 721 F.3d 29 (1st Cir. 2013) (standard for waiver and substantial-evidence review)
- McKenzie-Francisco v. Holder, 662 F.3d 584 (1st Cir. 2011) (applicant bears burden to prove marriage entered in good faith)
- Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005) (reversal where extended premarital contact, cohabitation, and documentary evidence showed good-faith marriage)
- Vallejo Piedrahita v. Mukasey, 524 F.3d 142 (1st Cir. 2008) (reviewing both IJ and BIA when BIA adopts IJ opinion)
- Mediouni v. INS, 314 F.3d 24 (1st Cir. 2002) (standard for substantial-evidence review)
- Chhay v. Mukasey, 540 F.3d 1 (1st Cir. 2008) (substantial-evidence standard explained)
- Reynoso v. Holder, 711 F.3d 199 (1st Cir. 2013) (post- and pre-marital conduct and documentary evidence relevant to good-faith inquiry)