Restrepo v. Holder, 676 F.3d 10

Background

Restrepo, a Colombian citizen, entered the U.S. in 1988 as a visitor and overstayed; he and María had two children.
In 1996 Restrepo’s father’s I-130 petition was approved while Restrepo was still married to María; Restrepo and María divorced in October 1996.
María remarried to U.S. citizen Carlos Ríos and obtained LPR status; Restrepo and María later reconciled and remarried Restrepo in March 2004.
DHS denied Restrepo’s adjustment of status in 2004 and revoked his visa; removal proceedings ensued.
An IJ denied cancellation of removal and voluntary departure, finding Restrepo lacked good moral character due to a sham divorce and false testimony; the BIA affirmed in 2010.
The First Circuit reviews the jurisdiction and the sufficiency of the credibility findings under applicable statutory standards.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court may review cancellation of removal rulings given limited statutory review	Restrepo argues for review of non-discretionary grounds for relief	HOLDER contends jurisdiction is limited to colorable constitutional claims or legal questions	Limited, but review is possible for non-discretionary grounds like false testimony under §1101(f)(6) and substantial-evidence review for credibility
Whether Restrepo’s lack of good moral character was properly decided under discretionary grounds	Restrepo contends the finding was discretionary and reviewable for substantial evidence	BIA/IJ relied on discretionary conclusions about the marriage history	The court reviews the non-discretionary ground of false testimony under §1101(f)(6) and sustains credibility findings on substantial evidence grounds
Whether Restrepo provided false testimony to obtain immigration benefits	Restrepo claims he did not knowingly lie to obtain benefits	Government shows multiple factors undermining credibility and corroboration; false testimony established	Substantial evidence supports the IJ/BIA finding that Restrepo testified falsely under oath regarding divorce motives
Whether the Adverse Credibility framework from In re A-S- applies here	Restrepo relies on In re A-S- three-pronged test for credibility	REAL ID Act context limitations distinguish asylum; framework not controlling	Even if applicable, the framework supports the credibility adverse finding based on record gaps and inconsistencies

Key Cases Cited

Toribio-Chávez v. Holder, 611 F.3d 57 (1st Cir. 2010) (review of good moral character and discretion under §1229b; substantial evidence standard)
Elysee v. Gonzales, 437 F.3d 221 (1st Cir. 2006) (limits on judicial review of immigration decisions; colorable constitutional claims or questions of law)
Cruz-Camey v. Gonzales, 504 F.3d 28 (1st Cir. 2007) (review framework for legal questions in cancellation of removal cases)
Bernal-Vallejo v. I.N.S., 195 F.3d 56 (1st Cir. 1999) (good moral character determination may be discretionary or non-discretionary depending on context)
Lin v. Gonzales, 503 F.3d 4 (1st Cir. 2007) (standard for reviewing agency credibility determinations under 8 U.S.C. §1252(b)(4))