Penaranda Arevalo v. BondiPenaranda Arevalo v. Bondi
On Petition for Review of an Order of the Board of Immigration Appeals.
* The Clerk of Court is directed to amend the official caption to conform with the above.
Petitioner Diego Penaranda Arevalo, a citizen of Ecuador unlawfully present in the United States, sought cancellation of a removal order under
Beginning with Penaranda‘s second petition, we reaffirm our decision in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that the time-and-place requirement is a non-jurisdictional rule, and we hold that the BIA did not abuse its discretion in concluding that Penaranda forfeited his objection. We therefore DENY that petition.
In his first petition, Penaranda principally challenges the immigration judge‘s finding that he gave false testimony for the purpose of obtaining an immigration benefit. That finding led the immigration judge to conclude that Penaranda failed to establish he possessed good moral character, and that he was therefore statutorily ineligible for the requested relief. This Court lacks jurisdiction to review Penaranda‘s petition insofar as it contests whether and why he testified falsely, because these are unreviewable questions of fact under
ANTHONY GUIDICE, Fairport, NY, for Petitioner.
TARYN L. ARBEITER, Trial Attorney, Office of Immigration Litigation (Brian M. Boynton, Principal Deputy Assistant Attorney General, Aimee J. Carmichael, Acting Assistant Director, Janice K. Redfern, Senior Litigation Counsel, on the brief), U.S. Department of Justice, Washington, DC, for Respondent.
WILLIAM J. NARDINI, Circuit Judge:
Petitioner Diego Penaranda Arevalo, a citizen of Ecuador, has lived in the United States unlawfully for more than twenty years. Immigration authorities ordered him removed to his native country, and he applied for cancellation of removal, a discretionary form of relief. An immigration judge (the “IJ“) denied his application on the ground that he failed to meet the statutory requirement of having maintained good moral character during the decade preceding his application. That conclusion rested on the IJ‘s findings (1) that Penaranda testified falsely regarding both the bona fides of his marriage to his first wife, Lucy Raposo, and the origin of his relationship with his second wife, Lucia Medeiros (Lucy‘s mother); and (2) that he
Beginning with Penaranda‘s 2024 petition, we reaffirm our decision in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that the time-and-place requirement is a non-jurisdictional rule, and we hold that the BIA did not abuse its discretion in concluding that Penaranda forfeited his objection. We therefore DENY that petition.
Next, we turn to Penaranda‘s 2023 petition, which raises two challenges concerning the agency‘s findings that Penaranda gave false testimony and that he did so to obtain cancellation of removal. First, Penaranda argues that these findings were erroneous in light of the record. This Court lacks jurisdiction to review whether and why Penaranda testified falsely, because these are unreviewable questions of fact. See
I. Background
A. Penaranda‘s Attempts to Obtain Permanent Resident Status
Penaranda entered the United States without authorization in December 2001 at age 19. In August 2007, roughly a year after failing to obtain lawful permanent resident status through his father, a permanent resident, Penaranda was arrested by the U.S. Department of Homeland Security (“DHS“) and placed in removal proceedings. At that time, Penaranda was living with and dating Lucia Medeiros, who was in the process of divorcing her then-husband, Manuel Raposo. In June 2008, while Penaranda‘s removal and Lucia‘s divorce were still pending, Penaranda married Lucia‘s daughter, Lucy Raposo, a United States citizen.2 Penaranda‘s marriage to Lucy allowed him to ward off removal, at least for a time. A few weeks after their marriage, in July 2008, Lucy filed, on Penaranda‘s behalf, a Form I-130 Petition for Alien Relative — the first
In 2010, Penaranda‘s second attempt to obtain permanent residence began to fail. In December of that year, Lucy called the tipline for U.S. Immigration and Customs Enforcement (“ICE“) and reported that she had married Penaranda for the sole purpose of helping him to obtain permanent residence. She later met with two USCIS officers from the agency‘s Fraud Detection and National Security Directorate at a police station, where she signed a sworn affidavit admitting that she had married Penaranda at her mother‘s request to help him obtain permanent residence. After discussing the case with her “current boyfriend,” she “decided [she] needed to come clean.” Certified Admin. R. (“CAR“) 675.3 To that end, she stated: “I wish to withdraw any and all support for Diego and I do not wish to sponsor him in any way for immigration purposes.” Id. at 674. Following Lucy‘s statement, USCIS began proceedings to revoke the approval of her I-130 petition. Ultimately, in March 2012, USCIS revoked her petition and denied Penaranda‘s I-485 application for permanent residence.
In April 2012, DHS initiated removal proceedings against Penaranda for the second time, issuing a notice to appear that charged him with removability under
Citing his (new) marriage to a U.S. citizen and Lucia‘s pending I-130 petition, Penaranda moved several times to continue his removal proceedings. USCIS granted nine continuances, but in March 2018, the agency issued a notice of intent to deny the I-130 petition. Notably, in response to that notice, Lucia submitted an unsworn affidavit from Lucy dated April 2018, recanting her 2010 admission that her marriage to Penaranda was a sham. Nonetheless, in July 2018, USCIS denied Lucia‘s I-130 petition because the agency determined that Penaranda had entered into his prior marriage with Lucy “for the purpose of evading immigration laws.” Id. at 1248. That determination precluded USCIS from granting Lucia‘s petition, pursuant
B. Penaranda‘s Application for Cancellation of Removal
In April 2019, after the resumption of his removal proceedings, Penaranda conceded at a hearing before an immigration judge that he was removable under
(1) continuous physical presence in the United States for ten years; (2) “good moral character” during this period; (3) no criminal convictions under
1. Documentary Evidence
During the removal proceedings, DHS made several evidentiary submissions. For one, the agency submitted Lucy‘s 2010 affidavit in which she admitted having married Penaranda for the purpose of evading immigration laws. That affidavit provided extensive details about the nature of her mother‘s relationship with Penaranda. Lucy stated that Lucia met Penaranda in 2005 through “a Yahoo chat site for those fifty and over,” and that he visited Lucia a month later, at which point Lucy met him for the first time. CAR 674. Penaranda then moved in with Lucia on a part-time basis for about a year before living with her full-time. In February 2008, several months after Penaranda‘s arrest by immigration officers, Penaranda and Lucia visited Lucy at her apartment and asked her to “‘do them a big favor’ and marry Diego so that he could stay in the U.S.” Id. Lucy did not immediately agree and asked for some time to consider the request. The next day, she asked to speak to Penaranda‘s lawyer about his immigration case. During a meeting with the lawyer, Michael Berger, he informed Lucy that in order to help Penaranda remain in the United States, she would need to stay married to him for three years and live with him throughout that period. Ultimately, she married Penaranda in June 2008 and was promptly asked to sign “a bunch of papers for immigration purposes,” which she did “without looking.” Id. Lucy also stated that when she and Penaranda attended an interview concerning Penaranda‘s I-485 application in December 2009, she asked to speak to a USCIS officer so that she could withdraw her support for Penaranda, but Berger “would not let [her] speak and said [she] had to remain silent.” Id.
In addition to Lucy‘s affidavit, DHS submitted several other records suggesting that Lucy‘s marriage to Penaranda was a sham. Those submissions included records relating to Penaranda‘s July 2009 arrest for assaulting Manuel Raposo (Lucia‘s son and Lucy‘s brother): (1) the criminal information, which refers to Manuel as Penaranda‘s “stepson,” id. at 606; and (2) the police report, which states that Manuel “began arguing with his mother‘s boyfriend, suspect, Diego D. Penaranda . . . [who] pushed and punched” Manuel, id. at
2. Testimony
Over the course of three merits hearings concerning Penaranda‘s application for cancellation of removal, several witnesses testified before the immigration judge, including Penaranda, Lucia, and Lucy.
Penaranda testified during the initial hearing in September 2019. He stated that he met Lucy online in 2005, but later testified that he met Lucia first. He testified that about a year after meeting Lucy, when he was already living with her family (including Lucia), he and Lucy got engaged. They then married in 2008 “because [they] loved each other,” CAR 192, but eventually divorced in September 2012 due to Lucy‘s drug use, infidelity, and failure to take care of her children. Following the divorce, Penaranda continued to live with Lucy, her children, and Lucia. He testified that he and Lucia later began dating sometime in 2013. According to Penaranda, Lucy‘s reaction to their relationship was “okay.” Id. at 216.
Lucia testified during the second hearing in January 2020. She stated that she first met Penaranda when Lucy brought him home in 2005. When asked how they became romantically involved, she explained that after Lucy and Penaranda divorced, she was taking care of Lucy‘s children because Lucy was “in a lot of trouble,” and she “wanted to keep Diego for the children” because he “did everything for [them].” Id. at 288–89. Lucia stated that it was around that time—October of 2012—when she began to have feelings for him.
Finally, Lucy testified during the third hearing in November 2020. She denied that she had married Penaranda to help him obtain immigration status, and testified that she did not recall why she would have said otherwise to ICE in 2010 “unless [she] was mad at him or something.” Id. at 475. But Lucy also offered testimony that contradicted Penaranda‘s and her mother‘s accounts. In particular, she stated that she began referring to Penaranda as her stepfather in 2010 after learning that he had become romantically involved with her mother—two years before Penaranda and Lucia said their romantic relationship began. When confronted with her written statement in support of Penaranda‘s latest application for cancellation of removal, in which she asserted that Penaranda fell in love with Lucia only after he divorced Lucy in 2012, Lucy stated, “I misspoke on that,” and reiterated that Penaranda “fell in love with [her] mom prior to [their divorce].” Id. at 518–19. She also conceded that the biography section of her 2010 MySpace profile: did not mention Penaranda, stated that she had been married twice even though Penaranda was her third husband at that time, and gave the impression that she was seeking a relationship.
Following Lucy‘s testimony, the immigration judge called Penaranda back to the stand to address Lucy‘s statement that she regarded him as her stepfather as early as 2010. Penaranda confirmed that Lucy had
C. The IJ‘s Decision
On March 25, 2021, the IJ issued a written decision denying Penaranda‘s application for cancellation of removal. The IJ explained that he would make a determination of Penaranda‘s credibility based on “the totality of the evidence, and all relevant factors,” including the inherent plausibility of his account, the consistency between oral and written statements, the internal inconsistency of such statements, and the consistency of such statements with the evidence in the record. CAR 76 (citing
After finding that Penaranda had met his burden to prove his continuous physical presence in the United States since entering the country illegally, the IJ went on to consider whether Penaranda had been a person of good moral character for the ten years preceding his application. He noted that, pursuant to
The IJ considered each charge in turn. With respect to the beginning of Penaranda‘s romantic relationship with Lucia, the IJ noted that both Penaranda and Lucia testified that their relationship did not begin until after Penaranda divorced Lucy in September 2012. But the IJ also noted that Penaranda changed his testimony twice as to whether his relationship with Lucia began before or after his divorce from Lucy. Additionally, the IJ found that two pieces of documentary evidence undermined Penaranda‘s timeline. The first is the criminal information for Penaranda‘s July 2009 arrest for assaulting Lucia‘s son Manuel, which refers to Penaranda as Manuel‘s stepfather. The second is Lucy‘s MySpace profile from May 2010, which includes three photos of Penaranda with captions created by Lucy that refer to him as her stepfather, and which also describes Lucy in a way that suggests she was seeking a relationship—for example, by noting her unhappy marital history and desire to avoid any more broken hearts. Moreover, while Lucy at one point stated that Penaranda and her mother fell in love only after she and Penaranda divorced in 2012, she later disavowed that statement and testified that Penaranda‘s relationship with her mother was obvious to her as early as 2010. Considering this evidence, the IJ found that Penaranda failed to meet his burden to prove that he did not give false testimony with respect to when his relationship with Lucia began.
Based on these false testimony findings, the IJ determined that Penaranda lacked the requisite good moral character under
D. The BIA‘s Order Affirming the Denial of Penaranda‘s Application
On appeal to the BIA, Penaranda argued that the IJ misconstrued what constitutes false testimony and that the decision to deny his application lacked a proper basis. He also argued that the IJ applied the wrong legal standard in determining whether he gave false testimony regarding the bona fides of his marriage to Lucy. Rejecting these arguments in an order dated May 24, 2023, the BIA “agree[d] with the Immigration Judge‘s determination that the respondent is not eligible for cancellation of removal because he failed to establish good moral character.” CAR 3. The BIA concluded that “[t]he Immigration Judge properly determined that the respondent‘s claim to good moral character is defeated by him giving false testimony for the purpose of obtaining an immigration benefit.” Id. Accordingly, the BIA dismissed Penaranda‘s appeal.
E. Penaranda‘s Motion to Terminate or Remand His Removal Proceedings
On July 18, 2023, Penaranda filed with the BIA a motion to terminate or remand his removal proceedings. He argued, for the first time, that his removal order was invalid because his notice to appear failed to include the date and time of the initial hearing, in violation of
II. Discussion
A. Petition for Review of the BIA‘s Order Denying Penaranda‘s Motion to Terminate or Remand His Removal Proceedings
We first consider Penaranda‘s 2024 petition.
This Court reviews the denial of a motion to reopen for abuse of discretion, see Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005), and reviews de novo questions of law decided by the IJ or the BIA, Boluk v. Holder, 642 F.3d 297, 301 (2d Cir. 2011).
In petitioning for review of the BIA‘s order, Penaranda principally argues that following the Supreme Court‘s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), this Court need not defer to the BIA‘s holding in Fernandes that the time-and-place requirement in Section 1229(a)(1) is a non-jurisdictional, claim-processing rule and thus is subject to waiver and forfeiture. In Loper Bright, the Supreme Court held that “courts need not and under the [Administrative Procedure Act] may not defer to an agency interpretation of the law simply because a statute is ambiguous,” thereby overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 603 U.S. at 412–13.
Penaranda‘s reliance on Loper Bright is unavailing. While we may not
“the manner and timing of serving process are generally nonjurisdictional matters“).9
Penaranda also argues that he could not have timely objected to his allegedly defective notice to appear because Fernandes was decided only after the close of the IJ proceedings. He suggests that before the BIA decided Fernandes, he could not have known that
Penaranda did not need Fernandes to frame an argument that his notice to appear was deficient, in violation of
Thus, it follows that a litigant can forfeit such an argument even if it has not previously been held forfeitable in another case. Yes, the BIA had no occasion until Fernandes to hold that a petitioner can forfeit a
In short, the BIA did not abuse its discretion by deeming forfeited Penaranda‘s untimely objection to the omission of a date and time from his initial notice to appear, and therefore denying his motion to terminate. Accordingly, Penaranda‘s 2024 petition is denied.
B. Petition for Review of the BIA‘s Order Affirming the Denial of Penaranda‘s Application for Cancellation of Removal
The threshold question with respect to Penaranda‘s 2023 petition is whether this Court has jurisdiction to review the petition under Wilkinson v. Garland, 601 U.S. 209 (2024). The answer is yes, but only in part.
In general, pursuant to
In challenging the BIA‘s judgment, Penaranda raises two principal arguments relating to the findings that he gave false testimony and that he did so for the purpose of obtaining an immigration benefit (specifically, cancellation of removal), which led the agency to conclude that he lacked good moral character within the meaning of
The gravamen of Penaranda‘s first argument is that the agency made erroneous factual findings. Because this Court lacks jurisdiction to review factual questions, the petition is dismissed as to that issue. And although Penaranda‘s second argument raises a question of law, it misconstrues the IJ‘s decision and is therefore meritless. Accordingly, on this latter issue, the petition for review is denied.
1. Penaranda‘s Challenge to the Agency‘s Factual Findings That He Gave False Testimony And That He Did So for the Purpose of Obtaining an Immigration Benefit
In his opening brief, Penaranda devotes considerable space to arguing why, in his view, the IJ and BIA erred in finding (1) that he gave false testimony before the IJ about both when his relationship with Lucia began and the bona fides of his marriage to Lucy, and (2) that he did so for the purpose of obtaining the immigration benefit of cancellation of removal. For instance, Penaranda argues that he “wasn‘t misrepresenting [the] facts to gain an immigration benefit. He was nervous, afraid and embarrassed.” Pet.‘s Br. 17. In the pages that follow, he marches through select parts of his testimony before the IJ and attempts to explain how his statements show that he was “tense and nervous” but evince no “deliberate attempt to lie.” Id. at 18, 20. This line of argument raises questions of fact underlying the agency‘s judgment to deny Penaranda‘s application for cancellation of removal, and this Court therefore lacks jurisdiction to review this argument.
The Supreme Court has held that “[f]ederal courts lack jurisdiction to review
Penaranda‘s petition raises precisely such questions here. Specifically, he argues that the BIA “ignored” the principle, set forth in Kungys, that an applicant who gives false testimony lacks good moral character under
A reviewing court‘s assessment under
Penaranda‘s argument, while framed as a challenge to the agency‘s application of Kungys, does not raise a colorable question of law; all it does, in substance, is challenge the agency‘s finding about why Penaranda lied during his testimony. That
The same goes for Penaranda‘s arguments regarding the IJ‘s assessment of the evidence (and the BIA‘s review). Penaranda contends, among other things, that the IJ gave undue probative weight to the police report concerning his July 2009 arrest for assaulting Manuel while discounting certain other evidence that is purportedly favorable for him. He also contends that the BIA‘s decision to affirm the IJ‘s allegedly faulty factual findings demonstrates a lack of “reasoned consideration.” Pet.‘s Br. 48. A challenge to the agency‘s weighing of the evidence, or the logic it employed in drawing inferences from it, no less than a challenge to the factual findings that result from such analysis, raises questions of fact; we therefore lack jurisdiction to review Penaranda‘s arguments on these points as well.11 See Boluk, 642 F.3d at 304 (explaining that
reviewing court does “not ‘reevaluate the relative strength of the evidence’ presented to the immigration judge” (citation omitted)); cf. Contreras-Salinas v. Holder, 585 F.3d 710, 714 (2d Cir. 2009) (observing that ”
2. Penaranda‘s Challenge to the Legal Standards Applied by the IJ
Penaranda next argues that the IJ applied the wrong legal standard when considering whether Penaranda had falsely testified about the bona fides of his marriage to Lucy. The IJ stated that because Penaranda was in removal proceedings when he married Lucy, their marriage carried a presumption of fraudulence that could be rebutted only with “clear and convincing evidence” that they did not marry for the purpose of obtaining his admission as an immigrant. Pet.‘s Br. 34-35 (quoting CAR 84). Penaranda suggests that while that framework was applicable for Lucy‘s I-130 petition on his behalf (which was initially granted but later revoked), it had no bearing on his current application for cancellation of removal. See id. at 34. He contends that, for present purposes, his burden was limited to showing by a mere preponderance of the evidence that he had not “falsely testif[ied]” about the bona fides of his marriage to Lucy. Id. Thus, he argues, the IJ “impermissibly heightened the standard of proof” by requiring clear and convincing evidence, which “tainted [the] weighing of the evidence,” and the BIA failed to correct this error. Id. at 34-35.
This argument raises a reviewable question of law. See Xiao Ji Chen, 471 F.3d at 329 (argument that a discretionary decision is “an abuse of discretion because it was made . . . based on a legally erroneous standard” may raise a question of law under
At no point did the IJ state that Penaranda was required to satisfy his burden of proof by clear and convincing evidence. The IJ was considering two related but distinct questions: (1) whether Penaranda had met his burden to establish that he had the good moral character required by
Penaranda points to places where the IJ referred to the clear-and-convincing standard, but the IJ was not talking about Penaranda‘s own burden of proof. Instead, the IJ noted that, when Lucy submitted her I-130 petition on Penaranda‘s behalf, she had to establish the bona fides of their marriage by clear and convincing evidence to overcome the presumption that a marriage is fraudulent if it occurs while removal proceedings are pending. Id. at 84 (citing
III. Conclusion
In summary, we hold:
- The requirement that a notice to appear specify the time and place of an initial removal hearing, set forth in
8 U.S.C. § 1229(a)(1) , is a non-jurisdictional, claim-processing rule subject to waiver and forfeiture. - The BIA did not abuse its discretion in denying Penaranda‘s motion to terminate, based on its conclusion that Penaranda forfeited his objection under
8 U.S.C. § 1229(a)(1) by failing to raise it before the conclusion of the IJ proceedings. - We lack jurisdiction to review the agency‘s denial of cancellation of removal under
8 U.S.C. § 1252(a)(2)(B) , to the extent that Penaranda contests the IJ‘s determination that he gave false testimony for the purpose of obtaining an immigration benefit, because that is an unreviewable question of fact. - We have jurisdiction to review the agency‘s denial of cancellation of removal under
8 U.S.C. § 1252(a)(2)(D) , to the extent that Penaranda contests the standard of proof applied by the IJ, because that raises a question of law. But even assuming arguendo that Penaranda had to establish his eligibility for relief only by a preponderance of the evidence, the record does not support his claim that the IJ held him to the higher standard of clear and convincing evidence.
For the foregoing reasons, Penaranda‘s 2024 petition is DENIED, and his 2023 petition is DISMISSED in part and DENIED in part.
Notes
Similarly,An alien applying for relief or protection from removal has the burden of proof to establish that [he] . . . satisfies the applicable eligibility requirements; and . . . with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.