                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           JUN 23 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUANA HERRERA DE MARTINEZ,                       No.   11-73754
AKA Juana Herrera De Marintez,
                                                 Agency No. A075-113-920
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.



JUANA HERRERA DE MARTINEZ,                       Nos. 12-72333
                                                      13-70052
              Petitioner,
                                                 Agency No. A075-113-920
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted June 12, 2017**
                              San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,***
District Judge.

      We deny Juana Herrera de Martinez’s petitions for review in this

consolidated appeal.

      1.     Herrera de Martinez applied for a hardship waiver; therefore, she bore

the burden of proof to establish by a preponderance of the evidence that the

marriage was entered in good faith. See 8 U.S.C. § 1186a(c)(4)(B), (C); Oropeza-

Wong v. Gonzales, 406 F.3d 1135, 1148 (9th Cir. 2005). We review the Board of

Immigration Appeals’ (“BIA”) decision that the marriage was not entered in good

faith under “the highly deferential substantial evidence standard. Under this

standard we must affirm unless the evidence is so compelling that no reasonable

fact-finder could fail to find the facts were as [Herrera de Martienz] alleged.”

Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir. 2005) (internal quotation

marks and citation omitted). Substantial evidence supports the BIA’s decision.




      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
                                           2
      The testimony of Herrera de Martienz’s daughter and the sworn statement of

her ex-husband support the BIA’s conclusion that Herrera de Martinez did not

meet her burden of proving her marriage was entered in good faith. Evidence

demonstrated that the couple entered the marriage for immigration purposes. For

example, Herrera de Martinez’s daughter could not recall ever living with anyone

other than her mother (despite providing detailed testimony regarding other

information); her witnesses only provided vague testimony regarding her marriage;

and her ex-husband’s sworn statement (which was confirmed by the immigration

officer) claimed the marriage was fake. This evidence does not permit us to

conclude that any reasonable fact-finder would be compelled to find that the

marriage was entered in good faith.

      We do not find that the immigration judge’s (“IJ”) reliance on the ex-

husband’s sworn statement to be fundamentally unfair. First, Herrera de Martinez

refused to provide a waiver of confidentiality, which would have allowed the

government to subpoena the ex-husband to testify. Second, the immigration

officer testified about her interview with the couple, which demonstrated

significant inconsistencies with regard to their marriage (including what they did

the night before). Finally, the IJ did not rely solely on the sworn declaration to

conclude that the marriage was not entered in good faith.


                                           3
      2.     Even assuming Herrera de Martinez did not waive the argument that

the BIA abused its discretion in denying the first motion to reopen, see Leer v.

Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (“deem[ing] abandoned” all issues

raised in a brief not supported by argument), the BIA did not abuse its discretion in

denying the motion. First, the BIA found that the motion to reopen to apply for

cancellation of removal and adjustment of status was not based on a change of

circumstances or newly discovered evidence. Thus, Herrera de Martinez was not

eligible to reopen her matter. See Toufighi v. Mukasey, 538 F.3d 988, 994, 996

(9th Cir. 2008). Second, because Herrera de Martinez did not enter her first

marriage in good faith, the BIA concluded that she could not show she was prima

facie eligible to adjust her status. See 8 U.S.C. 1154(c). The BIA’s conclusions

were not “illogical, implausible, or without support in inferences that may be

drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc).

      3.     Herrera de Martinez’s second motion to reopen requested reopening to

apply for cancellation of removal and adjustment of status based on her approved

visa petition through her second marriage and because her former counsel’s

performance prevented her from obtaining relief from removal. The BIA did not

abuse its discretion in denying Herrera de Martinez’s second motion to reopen.


                                          4
First, the BIA acknowledged that the approved visa petition was new and

acknowledged that her family would suffer hardships, see Najmabadi v. Holder,

597 F.3d 983, 990 (9th Cir. 2010), but concluded, in its discretion, that the

circumstances of her first marriage weighed against reopening, see Fisher v. INS,

79 F.3d 955, 965 (9th Cir. 1996). Second, the BIA rejected the claim that the

performance of Herrera de Martinez’s former counsel prejudiced her, because

Herrera de Martinez did not present any evidence to rebut the conclusion that her

marriage was not entered in good faith. Thus, Herrera de Martinez failed to show

how prior “counsel’s ineffective performance . . . affected the outcome of the

proceedings.” Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir. 2003) (citations

omitted). Finally, the BIA also concluded that, because cancellation of removal

and adjustment of status were discretionary decisions, it was unlikely that either

would be granted in light of the fact her first marriage was not entered in good

faith. See Fisher, 79 F.3d at 965. None of the foregoing conclusions were

“illogical, implausible, or without support in inferences that may be drawn from

the record.” Hinkson, 585 F.3d at 1262.

      4.     Even assuming Herrera de Martinez did not waive the argument that

the BIA abused its discretion in denying the motion to reconsider, see Leer, 844

F.2d at 634, the BIA did not abuse its discretion. Herrera de Martinez’s request for


                                          5
a waiver under 8 U.S.C. § 1227(a)(1)(H) was untimely, because she either failed to

raise the issue before the IJ or failed to assert that her former counsel was

ineffective by failing to request the waiver. The BIA’s conclusion was not

“illogical, implausible, or without support in inferences that may be drawn from

the record.” Hinkson, 585 F.3d at 1262.

      PETITIONS FOR REVIEW DENIED.




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