Lamim v. Holder
760 F.3d 135
1st Cir.2014Background
- Lamim, a Brazilian citizen, entered the U.S. on a tourist visa in February 2001 and married U.S. citizen Tracie Silva in May 2004, obtaining conditional permanent resident status under 8 U.S.C. §1186a(a)(1).
- To remove the conditional status, Lamim could file jointly with Silva within 90 days before the second anniversary of his conditional status or pursue a hardship waiver if filing singly after a divorce or failure to file jointly. 8 U.S.C. §1186a(c)(1)(A), (c)(4).
- Lamim and Silva divorced in November 2007; Lamim filed for a hardship waiver in January 2008, subsequently denied by USCIS on August 6, 2010, and followed by removal proceedings.
- Lamim's waiver denial rested on the Board of Immigration Appeals’ evaluation of whether the marriage was entered into in good faith, using the agency guidance for evidence of commitment in 8 C.F.R. §1216.5(e)(2).
- The Board found insufficient evidence of financial commingling, cohabitation, or marital memorabilia, noting Lamim’s joint account was in name only, rental receipts were in his name, and Silva’s name was absent from the deed to a purchased home; Lamim also did not list a child from another relationship on the waiver form. The Board acknowledged Lamim had a child with another woman in 2005, but this was not dispositive.
- Lamim petitioned for review, arguing the Board relied on an improper moral judgment about adultery; the First Circuit affirmed, holding the Board’s decision was based on proper evidence and guidance, and was supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lamim entered into the Silva marriage in good faith | Lamim contends the denial rests on moral judgment about adultery. | Board evaluated good faith using documentary factors under 8 C.F.R. §1216.5(e)(2) and found insufficient evidence of commingling and cohabitation. | Yes; Board's finding supported by substantial evidence. |
| Whether the Board improperly relied on the affair in denying the waiver | Lamim argues reliance on the affair was improper moral reasoning. | Board used applicable evidence-guidance and did not disproportionately emphasize the affair. | No; decision rested on evidence within the statutory framework. |
| Standard of review for BIA factual determinations in good-faith waivers | Lamim urges a less deferential standard due to alleged legal error. | We review for reasonableness, upholding if supported by substantial evidence. | upheld; Board's factual finding affirmed due to substantial record support. |
Key Cases Cited
- McKenzie-Francisco v. Holder, 662 F.3d 584 (1st Cir. 2011) (burden to show good faith in waiver determined from evidence of marital commitment)
- Reynoso v. Holder, 711 F.3d 199 (1st Cir. 2013) (good-faith determination is a factual finding reviewable for substantial evidence)
- INS v. Elias–Zacarias, 502 U.S. 478 (U.S. 1992) (substantial evidence standard for agency findings of fact)
- Martinez v. Holder, 734 F.3d 105 (1st Cir. 2013) (Board's good-faith determination reviewed for reasonableness against record)