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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 99-1226 <br> <br>                          AGNELO MENDES, <br> <br>                           Petitioner, <br> <br>                                v. <br> <br>             IMMIGRATION AND NATURALIZATION SERVICE, <br> <br>                           Respondent. <br> <br>                       ____________________ <br> <br>               PETITION FOR REVIEW OF THE DECISION <br> <br>               BY THE BOARD OF IMMIGRATION APPEALS <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Bownes, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Jeremiah Friedman, with whom Maureen O'Sullivan, Harvey <br>Kaplan, Ilana Greenstein and Kaplan, O'Sullivan & Friedman, LLP <br>were on brief, for petitioner. <br>    William E. Michaels, Attorney, Office of Immigration <br>Litigation, Civil Division, U.S. Department of Justice, with whom <br>David W. Ogden, Acting Assistant Attorney General and H. Bradford <br>Glassman, Attorney, Office of Immigration Litigation, Civil <br>Division, U.S. Department of Justice, were on brief, for <br>respondent. <br> <br> <br>                       ____________________ <br> <br>                       November 24, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  This case involves three <br>marriages, four separate visa petitions, and immigration <br>proceedings spanning more than fifteen years.  Petitioner Agnelo <br>Mendes appeals from the decision of the Board of Immigration <br>Appeals ("BIA") (1)  to deny his Motion to Remand for adjustment of <br>status to permanent resident under the Immigration and Nationality <br>Act, 8 U.S.C.  245 (1996) ("INA"); (2) to affirm Immigration and <br>Naturalization Service's ("INS") denial of the joint petition to <br>remove conditional residence under section 216 of the INA; and (3) <br>to affirm the INS's denial of suspension of deportation under INA <br> 244(a), 8 U.S.C.  1254 (repealed by IIRIRA  308(b)(7), 110 <br>Stat. 3009-615 (1996)). <br>         Pursuant to our recent opinion in Bernal-Vallejo v. INS, <br>No. 99-1211, slip op. at 2 (1st Cir. Nov. 2, 1999), we hold that  <br> 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant <br>Responsibility Act of 1996, Pub. L. No. 10-208, div. C, 110 Stat. <br>3009-546 (IIRIRA), precludes jurisdiction over Mendes's claim that <br>the BIA erred in finding that he has not demonstrated extreme <br>hardship under INA  244.  Although we have jurisdiction to review <br>petitioner's due process challenge to the BIA's finding of <br>deportability, judicial review is barred because the petitioner <br>failed to exhaust his administrative remedies. <br>         Subsequent to the BIA's denial of the petitioner's Motion <br>to Remand, the INS revoked the petitioner's visa, a necessary <br>prerequisite to adjustment of status, rendering this issue moot.  <br>We give no further consideration to the scope of our jurisdiction <br>to review the BIA's denial of the Motion at this time. <br>                                I. <br>         Some background on the statutory and regulatory scheme <br>for alien-citizen marriage is required to understand the pertinent <br>facts of this case.  Section 216 of the INA sets out the procedural <br>requirements for acquiring lawful permanent resident status through <br>a bona fide marriage to a United States citizen.  After the citizen <br>spouse files a visa petition and a petition for adjustment of <br>status under INA  245(d), the alien spouse may be granted a two- <br>year conditional lawful permanent resident status.  See INA <br> 216(a)(1).  To remove the conditional status, the citizen and <br>alien must file a joint petition (Form I-751) and appear for a <br>personal interview.  See INA  216(c)(1) & (d).  Within 90 days, <br>the INS must issue a determination as to whether the facts alleged <br>in the petition are true with respect to the qualifying marriage.  <br>See INA  216(c)(3)(A).  The burden at this stage is on the <br>petitioner.  If the joint petition is denied, the alien's <br>conditional status is terminated,  216(c)(3)(C), and the alien is <br>deportable under INA  241(a)(1)(D)(i).  See Matter of Lemhammad, <br>20 I. & N. Dec. 316, 1991 BIA LEXIS 13, at *3.  If the alien seeks <br>review of the District Director's decision in the deportation <br>proceeding, the burden of proof is placed on the INS to establish <br>by a preponderance of the evidence that the facts in the petition <br>are not true, in other words that the marriage was entered into for <br>the purpose of procuring his entry as an immigrant.  See <br> 216(c)(3)(D); Matter of Lemhammad, 1991 BIA LEXIS at *11. <br>         For the sake of efficiency, we summarize the facts as <br>follows.  Petitioner Agnelo Mendes, a native and citizen of Cape <br>Verde, first entered the United States on July 16, 1982, as a <br>nonimmigrant visitor.  His first marriage to U.S. citizen Indiana <br>Burgo took place approximately three weeks later, on August 8, <br>1982, and produced a son on April 30, 1983.  Although a visa <br>petition was filed immediately, Burgo withdrew it, informing the <br>INS that she and petitioner had married for immigration purposes.  <br>The petitioner was placed into deportation proceedings and was <br>granted voluntary departure by October 25, 1983.  Burgo filed a <br>second visa petition, but it was denied based on the petitioner's <br>failure to prove that he had a bona fide marriage.  The BIA <br>affirmed that decision on January 31, 1986. <br>         On December 28, 1985, the petitioner reentered the United <br>States as a nonimmigrant visitor, with the alleged intention of <br>resolving his marriage with Burgo, but they divorced.  On <br>November 2, 1987, the petitioner married U.S. citizen Renee Duarte, <br>who filed a third visa petition on his behalf.  On December 13, <br>1989, Duarte and the petitioner filed a joint petition to remove <br>the conditional basis of his status (Form I-751), which is the <br>subject of the instant appeal. <br>         The INS subsequently terminated the joint petition based <br>on several inconsistencies in the information provided with the <br>joint petition and in the personal interview.  For example, Duarte <br>could not identify friends of the petitioner who submitted <br>affidavits on behalf of the couple; she was unfamiliar with her <br>husband's bank account; there were facts in dispute with respect to <br>the petitioner's rent and whether Duarte and his child ever resided <br>with him; the couple failed to provide joint tax returns and the <br>birth certificate for their child; and the petitioner did not <br>acquire family medical coverage until 1990, despite the fact that <br>Duarte was expecting a child and he had claimed one of his other <br>children as a dependent in his tax returns.  On March 29, 1993, the <br>District Director informed the couple, <br>                  [b]ecause of the absence of any convincing <br>         evidence showing the marriage to have been <br>         entered into in good faith, it is concluded <br>         that you have failed to sustain your burden to <br>         reverse a denial of the application before us <br>         and that your marriage was entered into for <br>         the sole purpose of securing an immigration <br>         benefit. <br> <br>As a result, INS terminated the petitioner's conditional resident <br>status pursuant to  216(c)(3) and placed him in deportation <br>proceedings for the second time.  During the proceedings, the <br>petitioner, who had separated from Duarte in 1990, became <br>romantically involved with U.S. citizen Mara Fortes, who gave <br>birth to his child in February 1994. <br>         At the conclusion of the deportation hearing on <br>December 28, 1993, the Immigration Judge ("IJ") affirmed the denial <br>of the joint petition and denied the petitioner's application for <br>suspension of deportation.  The IJ found that the petitioner's <br>testimony was not credible, and that he entered his marriage with <br>Duarte for immigration purposes.  In reaching this conclusion, the <br>IJ relied on the inconsistencies in the petitioner's testimony <br>regarding his prior addresses and his children and the fact that <br>the petitioner and his spouse did not "have a lot of information <br>concerning each other."  The IJ ultimately found that the marriage <br>was apparently "entered into for the purpose of obtaining <br>Immigration benefit[s]," and that the petitioner "did not meet his <br>burden of showing that it was a bona fide marriage." <br>         The IJ denied the petitioner's application for suspension <br>of deportation but granted his request for voluntary departure.  It <br>is evident from the IJ's opinion that she equivocated over the <br>statutory requirement of good moral character, and despite her <br>earlier finding that the petitioner's testimony was not credible, <br>she reluctantly concluded that he "just barely" satisfied the good <br>moral character requirement.  However, he failed to demonstrate <br>that he or his family would suffer extreme hardship if he were <br>deported.  The IJ noted that he and his wife were separated and <br>were filing for divorce, that he had provided little if any child <br>support, and that he had frequently been absent from his children.  <br>His claims of economic distress were not extreme, and the IJ <br>further commented that it was "somewhat disingenuous for [the <br>petitioner] to claim that he would experience extreme hardship to <br>be separated from his United States citizen child when he has <br>voluntarily abandoned just about every child he has ever fathered <br>at one point or another."  In her final analysis, the IJ weighed <br>his request for relief against his "consistent violation of this <br>country's immigration laws," including overstaying visas, working <br>illegally, obtaining visitor visas with intention to remain, and <br>finally his marriage to Duarte to procure immigration benefits.  <br>Despite these findings, she granted voluntary departure, because <br>"he just misses falling under the definition of giving false <br>testimony in order to obtain a benefit under the Act." <br>         The petitioner filed a timely appeal of the IJ's <br>decision.  While it was pending, the petitioner remarried Indiana <br>Burgo on May 13, 1995, and a fourth visa petition was filed and <br>approved.  The BIA denied the petitioner's Motion to Remand for <br>adjustment of status and affirmed the IJ's decision.  In denying <br>the Motion to Remand, the BIA considered the merits of his request <br>for adjustment of status, and concluded that the positive factors <br>of the granted visa, the relationship with his new wife and <br>children, and strong work history, were outweighed by the adverse <br>factors: "a host of evidence which indicates that the respondent <br>has engaged in marriage fraud on two prior occasions and has <br>attempted to derive immigration benefits from his prior marriages."  <br>Likewise, in its affirmance of deportability, the BIA relied on the <br>IJ's findings that the petitioner was not a credible witness and on <br>the evidence of marriage fraud.  Finally, the BIA concurred that <br>the petitioner was undeserving of relief in the form of suspension <br>of deportation. <br>         On July 19, 1999, the INS terminated the petitioner's <br>fourth visa petition.  An appeal of that decision is currently <br>pending before the BIA. <br>                               II. <br>         The parties agree that his case is governed by the IIRIRA <br>transitional rules because Mendes was placed in deportation <br>proceedings on March 29, 1993, and the BIA's final order of <br>deportation was issued on February 9, 1999.  Therefore, this Court <br>has jurisdiction under INA  106(a), 8 U.S.C.  1105a, as amended <br>by IIRIRA, unless  309(c)(4)(E) precludes review. <br>         In Bernal-Vallejo, we resolved the nature of our <br>jurisdiction under the transitional provisions of IIRIRA.  We held <br>that <br>                   309(c)(4)(E) precludes the exercise of <br>         jurisdiction only where: (1) the agency <br>         decision as to which review is sought is a <br>         "decision under" one of the enumerated <br>         sections, and (2) the agency decision rests on <br>         a ground that is committed to agency <br>         discretion.  Conversely,  309(c)(4)(E) does <br>         not preclude the exercise of jurisdiction <br>         where the decision is not a "decision under" <br>         an enumerated section or where the ground on <br>         which the decision rests is not one committed <br>         to agency discretion. <br> <br>Bernal-Vallejo, slip op. at 2.  Consequently, we retain <br>jurisdiction over constitutional challenges to the process, BIA <br>determinations that do not come under enumerated sections, and BIA <br>determinations to deny relief that rest on objective factual <br>criteria.  See id. at 2-3, 7-10. <br>         A.  Challenge to Extreme Hardship Determination <br>         Our opinion in Bernal-Vallejo controls.  In Mendes's <br>case, as in Bernal-Vallejo's, the BIA's denial of suspension of <br>deportation was based on a determination that he could not meet the <br>third eligibility requirement for relief from deportation.  The BIA <br>affirmed the IJ's finding that neither Mendes, nor his family, <br>would suffer extreme hardship if he were deported.  In Bernal- <br>Vallejo we concluded that we lacked jurisdiction to review the <br>BIA's decision, based on a failure to show extreme hardship, not to <br>suspend deportation.  See id. at 7, 10-11.  Under the two-pronged <br>analysis we established therein,  309(c)(4)(E) bars judicial <br>review because (1)  244, suspension of deportation, is an <br>enumerated section within  309(c)(4)(E), and (2) the extreme <br>hardship determination has been committed to agency discretion.  <br>See id. <br>         B.  Constitutional Claim <br>         The petitioner asserts that the IJ improperly shifted the <br>burden of proof in the deportation proceeding from the INS to the <br>petitioner in violation of his due process rights.  He points to <br>three alleged errors on the part of the IJ: (1) giving probative <br>value to the District Director's finding that the petitioner did <br>not meet his burden of proving he had a bona fide marriage and <br>misinterpreting that finding to be an affirmative finding of fraud; <br>(2) upholding the INS's finding of fraud, despite the fact that the <br>INS called no witnesses and offered no documentation, relying <br>instead on the petitioner's Form I-751 (joint petition), its <br>supporting documents, and the Notice of Intent to Terminate <br>Conditional Resident Status; and (3) determining that "the <br>respondent did not meet his burden of showing that it was a bona <br>fide marriage," when in fact the burden was on the INS to prove by <br>a preponderance of the evidence that his marriage was entered into <br>to procure immigration benefits. <br>         Section 309(c)(4)(E) does not affect our jurisdiction to <br>review Mendes's constitutional claim, assuming arguendo that these <br>facts state a colorable claim.  See id. at 13.  Nevertheless, <br>judicial review is unavailable on other grounds.  We concur with <br>the government that the petitioner has waived his due process claim <br>by failing to raise it at his deportation hearing, at his hearing <br>for suspension of deportation, or before the BIA.  See Thomas v. <br>INS, 976 F.2d 786, 789 (1st Cir. 1992). <br>         This Court has long acknowledged that the doctrine of <br>administrative exhaustion bars issues "raised for the first time in <br>a petition for review."  Bernal-Vallejo, slip. op. at 13 (citing <br>Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992)).  We do not <br>agree with the petitioner that he sufficiently raised his due <br>process claim before the BIA.  Petitioner's argument that the <br>"Immigration Judge erred in finding that the Respondent was not <br>entitled to the approval of his Joint Petition . . . since the <br>burden of proof in this proceeding is on the government to <br>establish by a preponderance of the evidence . . . and the <br>government failed to meet its burden," is clearly not in the <br>context of a due process challenge. <br>         Alternatively, the petitioner requests that we exercise <br>our discretion to apply the doctrine of administrative exhaustion <br>flexibly.  Though claims of due process may be exempt from the <br>requirement of exhaustion, "a petitioner cannot obtain review of <br>procedural errors in the administrative process that were not <br>raised before the agency merely by alleging that every such error <br>violates due process."  Ravindran, 976 F.2d at 762.  In this case, <br>the alleged burden shifting was the type of procedural error that <br>the BIA could have addressed, see id. (distinguishing between <br>substantive constitutional challenges to the statutes or formal <br>procedural rules and defects in the evidentiary ruling in his <br>individual hearing), and therefore we decline to rule on the <br>petitioner's claim. <br>         C.  Challenge to Finding of Deportability <br>         Other than his due process claim, the petitioner has come <br>forward with no other challenge to the BIA's finding that his <br>marriage was entered into to procure immigration benefits.  He has <br>not presented evidence that would compel a finding that the <br>petitioner had a bona fide marriage, or would even suggest that the <br>BIA's finding that the marriage was entered into for the purpose of <br>obtaining immigration benefits is unreasonable.  Instead, the <br>petitioner relies heavily on his contention that the District <br>Director and the IJ never made affirmative findings of marriage <br>fraud, and therefore the BIA, in its failure to independently <br>review the record, mistakenly concluded that there was a host of <br>evidence showing that the petitioner had violated immigration laws.  <br>Although deference is due to the BIA, see Meguenine v. INS, 139 <br>F.3d 25, 27-28 (1st Cir. 1998), the petitioner claims that this is <br>a case where the BIA's inferences and presumptions are not <br>reasonably grounded in the record viewed as a whole.  See Gallius <br>v. INS, 147 F.3d 34, 43-44 (1st Cir. 1998). <br>         There is no dispute that we have jurisdiction to review <br>the BIA's affirmance of the IJ's decision to deny Mendes's petition <br>to remove conditional status.  It is not within the purview of <br> 309(c)(4)(E).  We review findings of fact and credibility by the <br>BIA under a "deferential 'substantial evidence'" standard.  <br>Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990); see also INS <br>v. Elas-Zacaras, 502 U.S. 478, 481 (1992); Meguenine, 139 F.3d at <br>27-28; Khalaf v. INS, 909 F.2d 589, 591 (1st Cir. 1990); Novoa- <br>Umania v. INS, 896 F.2d 1, 2 (1st Cir. 1990).  The BIA's affirmance <br>of the IJ's findings must be "upheld if 'supported by reasonable, <br>substantial and probative evidence on the record considered as a <br>whole.'" Elas-Zacaras, 502 U.S. at 481 (citing 8 U.S.C. <br> 1105(a)(4)). <br>         We find ample evidence to support the BIA's finding of <br>marriage fraud, including but not limited to the inconsistencies <br>between Mendes's testimony and the documents that he submitted in <br>support of his joint petition, as well as the adverse credibility <br>finding of the IJ.  Mendes is unable to sustain his high burden <br>under Elas-Zacaras of presenting evidence that is "so compelling <br>that no reasonable fact finder could fail" to find that he had a <br>bona fide marriage.  Id. at 483-84.  To the contrary, based on the <br>petitioner's record of lying before the IJ, filing false documents <br>before the INS, filing tax returns listing his child as a dependent <br>when all the evidence suggests otherwise, and entering into a <br>previous questionable marriage, we conclude that any reasonable <br>fact finder would determine on this record that the petitioner had <br>married Duarte for the purpose of procuring immigration benefits.  <br>See Meguenine, 139 F.3d at 28. <br>         If there is any error in this record, it lies in the <br>immigration authority's laxity in repeatedly admitting Mendes into <br>this country without appropriate investigation.  This lapse enabled  <br>this Lothario to father three U.S. citizen children, all of whom <br>will be deprived his support, both financial and moral, in years to <br>come. <br>         We affirm the decision of the BIA that the petitioner is <br>deportable.  The Petition for Review is dismissed.</pre>

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