I-751 waiver case coming from the 7th Circuit
Note this case comes from the Seventh Circuit and might not be applicable outside this circuit, however, it might be a good guidance of what the BIA should follow on evidence:
Hernandez v. Lynch – June 18, 2015, U.S. Court of Appeals, Seventh Circuit
In 1988, Gerardo Hernandez Lara married a US citizen (USC), and on the basis of that marriage, gained conditional permanent residency. He never completed the necessary process to remove the conditions on his residency, and in 2008 – ten years after divorcing his wife – he sought permanent residency through a discretionary waiver available to petitioners who can show that they entered a marriage in good faith. At the removal hearing, Hernandez testified that he entered the marriage and provided supporting documents to that effect; the government offered no evidence to the contrary. The immigration judge, without making a credibility finding, concluded that Hernandez’ marriage was no entered into in good faith and ordered him removed to Mexico. Upon appeal, the Board of Immigration Appeals evaluated the case under the assumption that his testimony was credible, and yet concluded that he failed to meet his burden by a preponderance of the evidence that his marriage was bona fide and entered into in good faith. The U.S. Court of Appeals granted Hernandez’ petition for review, finding that that the BIA committed legal error by demanding more evidence than necessary to satisfy the preponderance standard.
Issue:
Whether credible testimony accompanied by scant documentary evidence satisfies the preponderance standard of proof where the government makes no showing of contrary evidence.
Facts:
In 1990, Hernandez and his wife, Winger, filed a joint petition to remove the conditions on his permanent residency. Hernandez, however, did not obtain unconditional residency because he and his wife never showed up for the interview, which is generally necessary to the process. Hernandez, in a sworn statement, stated that Winger had left him a month and a half before the interview because she was angry with him for working two jobs and coming home late, and that he had not seen her since. At his request, the interview was rescheduled for 1992, however, neither spouse appeared at this interview; Hernandez was in custody for a DUI and gave no explanation for Winger’s absence.
Sixteen years later, in 2008, Hernandez filed an I-751 requesting a discretionary waiver of the joint petition requirements, including the interview, which is available (along with the unconditional permanent residency) upon a showing that he entered the failed marriage in good faith and that he is not at fault for failing to satisfy the joint-petition requirements.
As evidence that his marriage was bona fide and entered into in good faith, Hernandez submitted joint tax returns for 1988 and 1989, statements from friends corroborating the marriage as bona fide, a letter from Winger stating that the couple had reconciled and were again living together, and a letter from Winger dated 1994 that she had been jealous of Hernandez for spending too much time with his friends.
USCIS denied the waiver after interviewing Hernandez on the grounds that he “failed to establish or provide documentation” that the marriage was entered into in good faith. USCIS terminated Hernandez’ conditional permanent residency and issued a notice to appear charging him with removability. In 2010, conceded removability and through his attorney renewed the request for the waiver. In addition to the previously submitted evidence of a bona fide marriage, Hernandez also submitted his and Winger’s birth certificates, marriage certificate, divorce decree and settlement agreement, and his tax returns from 1998 through 2011.
At a 2013 hearing, Hernandez testified that he met Winger at a bar, and the two started dating soon thereafter. He went on that they got married in 1988, after living together for two months, because he “loved her a lot.” When asked if he married Winger to obtain residency, he answered “No. Never.” He explained not having more documentary evidence by appealing to the facts that Winger handled their finances and they were no longer in contact, and that the wedding photographs had been stolen along with the money that he kept in a folder with the photos. A friend of Hernandez’ also testified, corroborating the marriage bona fides. The government submitted no evidence.
Analysis:
Hernandez held the burden of showing by a preponderance of the evidence, i.e., that it was more likely than not, that his marriage was bona fide and entered into in good faith, and not to circumvent U.S. immigration laws. The IJ found that he failed to meet this burden on the grounds that his “evidence was not sufficiently detailed and, at times, proved inconsistent: with his submitted documents. The chief inconsistency, according to the IJ was Hernandez’ testimony that the marriage broke up because he refused to go out drinking and partying with his wife, while Winger’s letter stated she was jealous of the time he spent with his friends. The IJ further stated that Hernandez’ testimony was vague and lacking in detail. Hernandez appealed the decision, arguing that the IJ had failed to apply to appropriate burden of proof.
The US Court of Appeals agreed that Hernandez was held to an improper standard of proof. The preponderance of evidence standard requires a showing that the petitioner’s claim, in this case that his marriage was entered into in good faith, is more likely true than false. In finding that Hernandez met this burden, the Court stated: “If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide. In reaching this decision, the Court cited several the following precedents: Lopez-Esparza v. Holder, 770 F.3d 606, 608 – 09 (7th Cir. 2014) (granting petition and remanding on ground that IJ applied incorrect burden of proof and observing that, when preponderance standard governs, “some evidence would seem to preponderate over no evidence”); Am. Grain Trimmers, Inc. v. Office of Workers’ Comp. Programs, 181 F.3d 810, 817–18 (7th Cir. 1999) (en banc) (ex-plaining that, under preponderance-of- evidence standard, “[o]ne compelling witness … can overwhelm ten contrary wit-nesses or a raft of papers, if the trier of fact chooses to believe the one witness and to disbelieve the ten”).
Conclusion:
Where a petitioner is held to a preponderance of the evidence burden, and the government submits no evidence, credible testimony is sufficient to meet the burden.
