                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3094
                                      _____________

                           LUIS ANTONIO JIMENEZ VILLA,
                                              Petitioner

                                              v.

                               ATTORNEY GENERAL
                            UNITED STATES OF AMERICA,

                                                       Respondent

                                      _____________

                         On Petition for Review of an Order of
                           the Board of Immigration Appeals
                                 (BIA-1 A206-907-815)
                    Immigration Judge: Honorable Charles Honeyman
                                    _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 15, 2018

      Before: SMITH, Chief Judge, CHAGARES, and FUENTES, Circuit Judges

                              (Opinion filed: August 8, 2018)
                                     _____________

                                        OPINION ∗
                                      _____________




       ∗
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
FUENTES, Circuit Judge.

      Luis Antonio Jimenez Villa petitions for review of the Board of Immigration

Appeal’s order affirming the Immigration Judge’s decision declining to grant Cancellation

of Removal for Non-Lawful permanent Residents. The Board of Immigration Appeals and

the Immigration Judge relied on 8 U.S.C. § 1101(a)(35) to invalidate a foreign marriage,

which requires post-solemnization consummation under immigration law. Absent this

marriage, they found Jimenez lacking his claimed parent-child relationship over his

claimed step-son. For the following reasons, we grant the petition for review, and will

vacate and remand.

                                           I.

      Jimenez is a citizen of Ecuador who entered the United States illegally in 1996. In

2010, Jimenez began a relationship with Angelica Orozco, also a citizen of Ecuador.

Orozco has five children—all US citizens—from a previous relationship, including her

oldest son Kevin. In 2013, Orozco and her five children returned to Ecuador to care for a

sick relative. In 2014, while in Ecuador, Orozco gave birth to Nathan Jimenez-Orozco,

Jimenez’s biological son. In the summer of 2014, Kevin returned to the United States to

live with Jimenez and complete his high school education. Jimenez is solely responsible

for Kevin’s care. Around this time, Jimenez was arrested for, and pled guilty to, Driving

Under the Influence.

      The Department of Homeland Security arrested Jimenez and charged him as

removable. In May 2015, Jimenez and Orozco married in an Ecuadorian proxy marriage,

while Jimenez was in the United States and Orozco was in Ecuador. Jimenez conceded his

                                           2
removability, but submitted a Form EOIR-42B, or “42B Non-LPR cancellation,”

application to cancel his removal. This provides for cancellation of removal where the

alien has: (1) been in the United States for ten years continuously; (2) been a person of

good moral character; (3) not been convicted of certain offenses; and (4) established that

removal would result in exceptional and extremely unusual hardship to the applicant’s

spouse, parent, or child who is a citizen of the United States. 1

         The Immigration Judge declined to grant cancellation of removal, concluding Kevin

did not qualify as Jimenez’s child because Jimenez’s marriage to Orozco was not

consummated after the proxy marriage.           This determination relied on 8 U.S.C. §

1101(a)(35), which defines “spouse” to not include: “a spouse, wife, or husband by reason

of any marriage ceremony where the contracting parties thereto are not physically present

in the presence of each other, unless the marriage shall have been consummated.” 2 The

Immigration Judge, relying on the Matter of B-, 3 found that a proxy marriage, not later

consummated, does not confer spousal status for immigration purposes. The Immigration

Judge further held that, because there was no spousal status, Jimenez could not prove

“unusual hardship to the [applicant’s] spouse … or child.” 4 The Board of Immigration

Appeals (“the Board”) affirmed. This petition for review followed. 5


1
    See 8 U.S.C. § 1229b(b)(1).
2
    AR 82–83.
3
    5 I&N Dec. 698 (BIA 1954).
4
    8 U.S.C. § 1229b(1)(D).
5
 The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8
U.S.C. § 1252(a)(1). We review de novo the Board’s legal determination that the proxy
                                              3
                                             II.

         Jimenez argues that we should grant the petition for review and reverse the Board’s

determination. First, he asserts the Board erred in requiring the proxy marriage be

consummated by sexual intercourse after the wedding and in concluding that prior

intercourse does not count as consummation. Second, he argues the interpretation in

Matter of B- is unconstitutional following the shift in traditional marital and sexual mores

explained in Obergefell and Windsor. 6         Third, he contends that § 1101(a)(35) is

unconstitutionally vague with respect to what constitutes consummation. Because we

decide this case on other grounds presented in the record, we need not address these

arguments. 7

         The language in 8 U.S.C. § 1101(a)(35) clearly states that a proxy marriage does

not give rise to a spousal relationship for immigration purposes unless it is consummated.

However, the relevant law does not preclude a minor from becoming a “child” if the

parental relationship results from a proxy marriage. 8 A “child” is “an unmarried person

who is a ‘stepchild, whether or not born out of wedlock, provided that the child had not

reached the age of eighteen years at the time the marriage creating the status of stepchild



marriage did not create a parent-child relationship. See Si Min Cen v. Att’y Gen., 825 F.3d
177, 186 (3d Cir. 2016). The standard of review for issues of fact is “substantial evidence.”
Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
6
  Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 570 U.S. 744
(2013).
7
 See Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 2010) (“We may affirm the order of the
District Court on any grounds supported by the record.”) (citation omitted).
8
    See 8 U.S.C. § 1101(b)(1)(B).

                                              4
occurred.” 9 The validity of the marriage giving rise to the parent-child relationship is a

matter of law of the place where the couple married. 10 It is undisputed that Ecuador

recognizes proxy marriages. 11 Therefore, under Ecuadorian law, Kevin is Jimenez’s child

and Jimenez may apply for cancellation of removal on the basis of that relationship because

no provision prohibits him from doing so.

           Matter of B- supports this holding. While this case held that a proxy marriage is not

a valid marriage under United States law, it also found that a proxy marriage may establish

a parent-child relationship. 12 In Matter of B-, the Board granted a visa petition to a child

born out of wedlock, but later legitimized through a locally legal proxy marriage. 13

Following the proxy marriage, the husband was not a “spouse” for immigration law

purposes. 14 However, the court implicitly found, by virtue of the proxy marriage valid

under Italian law, a parent-child relationship was formed and the minor was a “child” for

immigration law purposes. 15




9
    Id.
10
   Matter of B-, 5 I&N Dec. at 699. The parties do not dispute the legality of proxy
marriages under Ecuadorian law. See Petitioner Br. at 30; Respondent Br. at 14; see also
Andrea B. Carroll, Reviving Proxy Marriage, 76 BROOK. L. REV. 455, 476 (2011) (proxy
marriage is widely recognized, in Central and South American countries and Europe, “as
they are all civilian jurisdictions with legal systems derived from Roman law, which always
permitted marriages by proxy.”).
11
     Carroll, supra note 24.
12
     Matter of B-, 5 I&N Dec. at 699.
13
     Id.
14
     Id.
15
     Id.
                                                 5
       Similarly, the proxy marriage between Jimenez and Orozco, which was valid under

Ecuadorian law, formed a parent-child relationship between Jimenez and Kevin. As Matter

of B- illustrates, Jimenez may not be a “spouse” for immigration law purposes, however,

that does not preclude him from claiming Kevin as his step-son. Accordingly, Jimenez’s

application must be reconsidered on the grounds that a parent-child relationship exists.

                                           III.

       For the foregoing reasons, we grant the petition for review, vacate the Board’s

decision, and remand for further proceedings consistent with this opinion.




                                             6
