                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2006

Cabrera-Perez v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-3896




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                         NO. 05-3896
                      ________________

               DOMINGA CABRERA-PEREZ,
                               Petitioner,

                               v.

             ALBERTO GONZALES,
    ATTORNEY GENERAL OF THE UNITED STATES.

          ___________________________________

            On a Petition For Review of a Decision
             of the Board of Immigration Appeals
                  (Agency No. A44-040-186)

                __________________________

          Submitted Under Third Circuit LAR 34.1(a)
                       April 14, 2006

 Before: MCKEE, FUENTES and NYGAARD, Circuit Judges

                    (Filed: August 1, 2006)


                     _________________

                  OPINION OF THE COURT



PER CURIAM

       Petitioner Dominga Cabrera-Perez, a native and citizen of
the Dominican Republic, entered the United States in April 1991
on a visitor’s visa. She married Jorge Perez-Rosario, an American
citizen, in the Bronx in December of that year. Mr. Perez filed an
adjustment of status application on her behalf, and, following an
interview at the United States Embassy in the Dominican Republic,
Cabrera became a lawful permanent resident on a conditional basis
pursuant to Immigration and Nationality Act (“INA”) § 216(a), 8
U.S.C. § 1186a(a) (1993).1 She was admitted to the United States
with that status on March 24, 1993. A.R. 139.2

        Mr. Perez died on December 6, 1993. The conditional
permanent resident statute, INA § 216, provides at subparagraphs
(c) and (d) that, in order for the conditional basis to be removed,
the alien spouse and the petitioning spouse (if not deceased) jointly
must submit to the Attorney General a petition which states that the
marriage, in sum and substance, was not entered into for the
purpose of gaining an alien's entry as an immigrant. 8 U.S.C. §
1186a(c)(1)(A), (d)(1). The alien spouse and the petitioning
spouse (if not deceased) must also appear before immigration
authorities for a personal interview. 8 U.S.C. § 1186a(c)(1)(B).
The usual time for filing the petition under INA § 216(d)(2)(A), 8
U.S.C. § 1186a(d)(2)(A), is 90 days before the second anniversary
of gaining status.

        Cabrera did not petition for removal of the conditional basis
of her status as required by INA § 216(c) during this time period.
Accordingly, her conditional permanent resident status was
terminated effective March 25, 1995, the day after the second
anniversary of gaining her status. Cabrera was issued a termination
notice by the Immigration and Naturalization Service (“INS”),
dated January 23, 1996, which stated that she and Mr. Perez had
failed to jointly petition for removal of the conditional status as


       1
         Section 216 of the Immigration and Nationality Act has
been amended twice since Cabrera first gained status in ways that
have no bearing on this petition for review. Throughout the
opinion, we will cite to the version of the statute in effect at the
time of the matter discussed, or which we believe was, or will be,
applicable, even though our holding does not turn on which version
of the statute actually applies.
       2
           “A.R.” denotes the Administrative Record.

                                 2
follows:

       In accordance with the provisions of Section 216(c)
       of the Immigration and Nationality Act you and your
       spouse through whom you obtained your conditional
       permanent residence were required to file a joint
       petition requesting removal of the conditional basis
       of your residence between 12/24/94 and 03/24/95.
       As of this date, no such petition has been filed.
       Therefore, in accordance with the provisions of
       Section 216(c)(2)(A) of the Immigration and
       Nationality Act, the permanent resident status
       previously accorded you is hereby terminated as of
       03/25/95.

A.R. 139.3

        On November 13, 1997, Perez filed an I-751 Petition to
Remove Conditions on Residence, seeking a waiver of the joint
filing requirement because her husband was deceased. A.R. 93,
249.4 A certificate of death was submitted with the application.
Inexplicably, Mr. Perez’ mother, the informant on the Death
Certificate, had listed Mr. Perez’ marital status as “unmarried.”
A.R. 138. On May 11, 1999, the District Director denied the
application, concluding that Cabrera had not entered into the
marriage in good faith.



       3
         On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security pursuant to the
Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat.
2135 (2002). When the events at issue here predate that
reorganization, we refer to the INS in this opinion.
       4
          Section 216(d)(2)(B) permits the required petition to be
filed after the 90-day period before the second anniversary upon a
showing of good cause and extenuating circumstances. 8 U.S.C.
§ 1186a(d)(2)(B). The timeliness of this waiver petition has never
been challenged.

                                3
        The District Director found the Death Certificate, with its
erroneous information, to be probative of the question whether the
marriage was entered into in good faith, and did not believe that
there was a logical basis for Cabrera’s mother-in-law to inform the
person who filled out the death certificate that her son had never
been married. In addition, Cabrera had failed to submit adequate
historical documentation and had failed to appear for a scheduled
interview. The decision concludes with an apparent misstatement
that “[I]t is obvious that that [sic] your marriage to Jorge Perez was
for reasons other than to procure your entry to the United States as
an immigrant.” A.R. 141-42. Removal proceedings were initiated
against Cabrera with service of Notice To Appear on June 2, 1999,
charging her as removable under INA § 237(a)(1)(D)(i), 8 U.S.C.
§ 1227(a)(1)(D)(i), as an alien whose permanent residence status
on a conditional basis was terminated.

        It was, of course, undisputed that Cabrera and Perez were
married. In fact, Mr. Perez had been married twice before,
according to their marriage certificate. A.R. 131. Cabrera obtained
counsel, and through him, she submitted a persuasive motion to
reopen her I-751 waiver petition. She submitted her marriage
certificate, Mr. Perez’ 1988 divorce decree, A.R. 132-33, a
photograph of the happy couple (if body language is any indicator)
on a New York City Circle Line tour, A.R. 134, and a statement
concerning the proposed testimony of three witnesses in support of
Cabrera’s contention that her marriage had been entered into in
good faith and was legitimate. A.R. 129, 257. On April 17, 2000,
Immigration Judge Nicole Y.K. Kim granted the motion and
ordered that proceedings be reopened for adjudication of the I-751
waiver petition. The matter was remanded to the District Director.
A.R. 70.

       On September 24, 2001, Cabrera appeared for her personal
interview. However, on March 11, 2002, the District Director
again denied her waiver petition, essentially for the same reasons
it originally was denied. A.R. 249-251. Again, the District
Director did not believe there was a logical basis for Cabrera’s
mother-in-law to report that her son had never been married, and,
again, she opined that there was a lack of historical documentation
and a failure to appear for the scheduled interview. Again the
decision includes the misstatement that Cabrera’s marriage to Perez

                                  4
was for reasons other than to gain entry into the United States.
Removal proceedings effectively were reinstated.

       Cabrera obtained new counsel, Jeffrey B. Steinfeld, Esquire,
and she appeared for a Master Calendar hearing on September 26,
2002 before Immigration Judge Esmeralda Cabrera (hereinafter
“the IJ”). Again on October 24 and November 21, 2002, at Master
Calendar hearings, Cabrera appeared with counsel, prepared to go
forward. A.R. 109. On November 21, 2002, a merits hearing date
of April 17, 2003 was scheduled. However, this hearing was
rescheduled, apparently by Immigration Court staff, to August 11,
2003.

        Prior to the August 11, 2003 hearing date, counsel met with
a number of witnesses, and prepared them to testify. On August 5,
2003, counsel wrote to the IJ, advising her that Cabrera had filed
an EOIR-42A Application for Cancellation of Removal, see 8
U.S.C. § 1229b(b), on November 21, 2002. He also advised the IJ
in this letter that Dalia and Gustavo Garcia, Maria Abreu, and
Altagracia Aponte, would testify at the August 11 hearing, as
follows: “I anticipate presenting testimony from most, if not all, of
these witnesses, in addition, to Ms. Cabrera de Perez herself, in
support of her Application that she was legitimately married to her
deceased husband, Jorge Luis Perez, and resided with him in
Bronx, New York from December 13, 1991 through his death, on
December 6, 1993.” A.R. 143-44.5 Counsel may also have “re-
filed” Cabrera’s I-751 waiver petition in November 2002, possibly
for the purpose of supplementing it. A.R. 87-88.



       5
         Section 216(c)(3)(D), 8 U.S.C, § 1186a(c)(3)(D) (2002),
provides that any alien whose permanent resident status is
terminated may have that decision reviewed in removal
proceedings. These proposed witnesses were ideally suited to
testify on Cabrera’s behalf. Her marriage to Mr. Perez took place
in the home of Gustavo and Dalia Garcia; Dalia is Cabrera’s sister.
A.R. 165, 257. Cabrera and her husband were customers at the
pharmacy where Ms. Abreu worked and which Mr. Garcia owned
and managed, A.R. 166, 170, and Ms. Aponte knew them as friends
and believed them to be “very much in love,” A.R. 168.

                                 5
       Counsel appeared in Immigration Court at 1:00 p.m. on
August 11, 2003, but Cabrera was not on time. As Cabrera had
previously conceded removability, the IJ directed that an in
absentia order of removal from the United States to the Dominican
Republic be entered against her. According to counsel, the IJ took
the bench at 1:00 p.m., and ordered removal in absentia at
approximately 1:20 p.m. A.R. 110.

       On November 5, 2003, Cabrera, through the same counsel,
moved to reopen the proceedings pursuant to 8 C.F.R. §
3.23(b)(4)(ii) and INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C),
and to vacate the in absentia order, contending that the failure to
appear was due to extraordinary circumstances as defined in INA
§ 240(e)(1). In addition, Cabrera argued that her tardiness did not
constitute a failure to appear, relying on decisions from the Ninth
and Seventh Circuits, Jerezano v. Immigration & Naturalization
Serv., 169 F.3d 613 (9th Cir. 1999), and Nazarova v. Immigration
& Naturalization Serv., 171 F.3d 478 (7th Cir. 1999). The
Department of Homeland Security, which had taken over the
functions of the INS, opposed the motion.

        Cabrera’s motion to reopen was supported by affidavits
from Cabrera herself and her brother-in-law, Mr. Garcia, the
substance of which was that, on the day of the hearing, Mr. Garcia
picked up witness Aponte in the Bronx in his car at approximately
11:00 a.m., and drove back home to his house in Hackensack, New
Jersey, where Cabrera and Dalia, her sister, waited for another
witness, Marisol Solis, a close friend of Cabrera and her late
husband, A.R. 28, to arrive. Mr. Garcia and Aponte arrived in
Hackensack at approximately 11:30 a.m. The party had planned to
depart for the courthouse in Newark at 12:00 p.m., but Ms. Solis
was delayed by traffic on the George Washington Bridge, and did
not arrive in Hackensack until between 12:20 and 12:30 p.m. They
finally left Hackensack for Newark between 12:30 and 12:40 p.m.
Mr. Garcia, who was not familiar with Newark, drove this distance
of about 18 miles, arriving at the Courthouse on Broad Street and
parking the car between 1:15 and 1:18 p.m.

        Cabrera proceeded immediately to Courtroom B on the 11th
floor, but the door was locked. She then went to the Court office
and waiting room sometime between 1:20 and 1:25 p.m., and spoke

                                6
to court staff. Court staff made a telephone call, presumably to the
IJ, but then advised Cabrera that a final order of removal had been
entered. When Cabrera finally left the Courthouse, it was only
1:30 p.m. A.R. 119.

        On January 5, 2004, the IJ denied the motion to reopen,
concluding that Cabrera’s failure to allow time for heavy traffic
and her brother-in-law’s unfamiliarity with downtown Newark did
not constitute exceptional circumstances as defined by INA §
240(e)(1), 8 U.S.C. § 1229a(e)(1) (2003). Cabrera’s problems
arriving on time were foreseeable and not beyond her control. The
IJ stated: “Ultimately, it was [Cabrera’s] own responsibility to
allocate sufficient time, taking into account potential adverse
circumstances, to ensure her timely arrival at her hearing. [She]
could have also adequately made sure well in advance that she had
the proper directions to get to Court.” A.R. 94.

       Cabrera appealed pro se to the Board of Immigration
Appeals. In her brief, she reiterated the arguments counsel had
made on her behalf in her motion to reopen, and she added that her
entrance into the Courthouse had been further delayed on the day
of her hearing by lines at the security checkpoint. A.R. 68. The
Department of Homeland Security declined to file a formal brief,
stating that the IJ’s decision was essentially correct and should be
affirmed. On August 25, 2004, the Board of Immigration Appeals
adopted and affirmed the decision of the IJ pursuant to In re:
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), agreeing with the
IJ that Cabrera’s reasons for her failure to appear did not
demonstrate exceptional circumstances. In a brief statement, the
BIA further concluded that her claim that she entered the
Courthouse before the IJ issued her order was not a basis for
reopening. A.R. 65.

      On September 22, 2004, Cabrera moved pro se to reopen the
BIA’s August 25, 2004 decision, essentially on the same grounds,
but she also argued that she was eligible for cancellation of
removal under INA § 240A(b). The motion was denied on
November 10, 2004 as untimely with respect to the August 11,




                                 7
2003 in absentia final administrative order.6

       Cabrera then filed a petition for writ of habeas corpus under
28 U.S.C. § 2241 in United States District Court for the District of
New Jersey, challenging, on due process grounds, the in absentia
order and the BIA’s affirmance of the order denying her motion to
reopen, and claiming that she was entitled to relief on her I-751
waiver petition and eligible for cancellation of removal. A.R. 262-
64. After passage of the Real ID Act of 2005, § 106(c), Pub. L.
No. 109-13, the habeas petition was transferred here for treatment
as a petition for review.

       We will grant the petition for review, reverse the August 11,
2003 in absentia removal order, the August 25, 2004 decision of
the Board of Immigration Appeals affirming the IJ’s denial of the
motion to reopen, and the November 10, 2004 decision of the
Board of Immigration Appeals preventing Cabrera from pursuing
cancellation of removal, and remand with instructions. As a
threshold matter, transfer of the habeas petition was proper. The
REAL ID Act eliminated judicial review in habeas of a final order
of removal, but it permits review of constitutional claims and
questions of law of the type raised by Cabrera in a petition for
review. 8 U.S.C. § 1252(a)(2)(D). See also Papageorgiou v.
Gonzales, 413 F.3d 356, 358-59 (3d Cir. 2005). The Act also
provided for transfer of habeas petitions pending in the district
courts to the courts of appeals, and further provided that the
mandatory 30-day time period for filing a petition for review, 8
U.S.C. § 1252(b)(1), shall not apply to transferred cases. See
Kamara v. U.S. Attorney General, 420 F.3d 202, 210 (3d Cir.
2005). Accordingly, our jurisdiction extends to both the August
25, 2004 and November 10, 2004 decisions of the BIA, cf. Stone
v. Immigration & Naturalization Serv., 514 U.S. 386, 405 (1995)
(Congress envisioned two separate timely petitions for review), and
the Attorney General does not contend otherwise.



       6
          The BIA also acknowledged a new I-751 waiver petition
on different grounds and an Application for Naturalization, and
advised Cabrera that the Department of Homeland Security had
jurisdiction over those applications.

                                 8
       Cabrera appeals the decision of the Board of Immigration
Appeals upholding both the IJ’s order of removal in absentia and
order denying her motion to reopen, and she contends that her I-
751 waiver petition has merit. The BIA concluded that Cabrera
had failed to appear at the August 11, 2003 hearing, and it agreed
with the IJ that she was required to demonstrate “exceptional
circumstances” to justify reopening the hearing, and that she had
not done so. Now appearing pro se once again, Cabrera contends
in the main that her tardiness does not rise to the level of a failure
to appear. We review the denial of a motion to reopen a removal
order entered in absentia for abuse of discretion, Immigration &
Naturalization Serv. v. Doherty, 502 U.S. 314, 323-24 (1992), but
we review de novo the legal question whether Cabrera’s due
process rights were violated. See Chong v. Immigration &
Naturalization Serv., 264 F.3d 378, 386 (3d Cir. 2001).

        The Fifth Amendment's due process protections apply to
aliens in removal proceedings. See Reno v. Flores, 507 U.S. 292,
306 (1993). In the context of an immigration hearing, due process
requires that aliens threatened with removal are provided the right
to a full and fair hearing that allows them a reasonable opportunity
to present evidence on their behalf. See Abdulrahman v. Ashcroft,
330 F.3d 587, 596 (3d Cir. 2003); Chong, 264 F.3d at 386. The
importance of a meaningful opportunity to be heard can scarcely be
contested, Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950), nor can it be contested that Cabrera has not had
her day in court.

        Although we have not heretofore addressed the due process
issue presented by this petition for review, three other circuit courts
have, in opinions we find persuasive. In Jerezano v. Immigration
& Naturalization Serv., 169 F.3d 613, an alien subject to removal
missed his asylum hearing by 15 to 20 minutes, and the
immigration judge issued an order of removal in absentia. The IJ
was still on the bench when the alien arrived but refused to reopen
the proceeding. Id. at 614-15. The BIA affirmed, concluding that
the alien had failed to show exceptional circumstances for his
failure to appear.

     On a petition for review, the alien contended that his
minimal tardiness did not constitute a failure to appear. Id. at 615.

                                  9
The Ninth Circuit agreed, concluding that the IJ should have either
reopened or continued the proceeding after the alien arrived, and
the failure to do so deprived the alien of a full and fair hearing.
The court explained: “Jerezano did appear but he was late; not so
late, however, that the IJ (who was still hearing cases) could not
have taken up the case at that time.” Id. See also Romani v.
Immigration & Naturalization Serv., 146 F.3d 737, 739 (9th Cir.
1998) (no failure to appear where petitioner arrived timely at
courthouse but went to wrong courtroom).

        In Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir.
2005), the alien had been paroled into the United States upon a
finding by the INS that he had a credible fear of returning to Cuba.
He had timely appeared for several prior hearings with the
assistance of his uncle, but when traveling alone for the first time,
he missed the Corpus Christi exit during rush hour traffic, and
headed in the wrong direction for a brief period. As a result, he
arrived in the courthouse for an 8:30 a.m. hearing at 8:44 a.m. The
IJ was still on the bench at 8:44 a.m., but by the time the alien
entered the courtroom at 8:50, the IJ had declared that he had failed
to appear, issued an order of removal in absentia, and exited the
courtroom. Id. at 344-45. The Fifth Circuit held that, as a matter
of law, arriving in the courtroom twenty minutes late but during
business hours, when the IJ is either still on the bench or recently
retired and close by, does not constitute a failure to appear. Id. at
345-46.

        In Nazarova v. Immigration & Naturalization Serv., 171
F.3d 478, an alien who did not speak English was assured by court
staff that an interpreter would be supplied, but when she arrived for
her master calendar hearing, there was no interpreter. In
anticipation of her next hearing, she hired her own interpreter. On
the day she was to be in court, however, her interpreter was two
hours late. On the “horns of a dilemma,” id. at 481, she chose to
wait for him rather than risk another hearing at which she would
understand nothing and be unable to convey anything. When she
arrived two hours past the scheduled hearing time, she discovered
that an order of removal had been entered in absentia. She
promptly notified the IJ of the reason why she was late in a
handwritten motion to reopen only minutes after she found out
what had happened, but the motion was denied, and the BIA

                                 10
affirmed.

       The Seventh Circuit found a due process violation in that the
alien had not received a meaningful opportunity to be heard. Id. at
480. The court reasoned that a non-English-speaking alien has a
due process right to an interpreter, and the alien reasonably
concluded under the circumstances of the confusing and
contradictory actions of immigration court staff that it was her
responsibility to find one. Id. at 484. The court stated: “ It violates
due process to insist that Nazarova should have sacrificed her
constitutional right to a meaningful opportunity to be heard so that
she could stand corporeal witness - though in essence unable to
hear or speak - to her own deportation.” Id. at 485.

        We agree with the reasoning of Jerezano, 169 F.3d 613,
Alarcon-Chavez, 403 F.3d 343, and Nazarova, 171 F.3d 478, and
extend it to the facts of this case. We hold that there was no failure
to appear, the in absentia order was entered in violation of
Cabrera’s right to due process, and thus it was an abuse of
discretion to deny her motion to reopen. When the delay is as short
as it was here, there have been no prior instances of tardiness, and
the IJ is either still on the bench or recently retired and close by, it
is a due process violation to treat the tardiness as a failure to
appear. It is accepted practice for Article III judges, U.S. Const.
art. 3, § 1, to give marginally tardy litigants a second chance,
because “[i]t is both harsh and unrealistic to treat as a
nonappearance a litigant’s failure to be in the courtroom at the
precise moment his case is called.” Jerezano, 169 F.3d at 615. We
expect nothing less from immigration judges who sit in this circuit,
given the severity of the consequences of removal and the minimal
disruption to the operations of the Immigration Court. We agree
with the Fifth Circuit that judges must “remember that they are
appointed, not anointed.” Alarcon-Chavez, 403 F.3d at 346.

       There is no transcript of the in absentia hearing in the
administrative record, but the Attorney General does not dispute
that Cabrera was only 15 to 20 minutes late. Cabrera’s tardiness
was minimal, as in Jerezano and Alarcon-Chavez, and like the alien
in Alarcon-Chavez, 403 F.3d at 344-45, Cabrera had never before
been late, likely entered the courthouse before the IJ left the bench,
and immediately made every effort to get the IJ to resume her

                                  11
hearing. When the IJ refused, she promptly filed a motion to
reopen. In addition, the reason for Cabrera’s tardiness was the late-
arriving witness. Had her witness, Ms. Solis, arrived on time,
Cabrera’s brother-in-law’s unfamiliarity with Newark would not
have been an issue. As in Nazarova, 171 F.3d at 485, the witness
was crucial to Cabrera’s case; the INS itself had consistently
advised her of the lack of evidentiary support for her case insofar
as the District Director had twice before criticized the lack of
historical documentation of the legitimate nature of Cabrera’s
marriage.

        The Attorney General has argued that the BIA properly
affirmed the IJ’s denial of the motion to reopen, because it did not
meet the statutory requirements of “exceptional circumstances”
which would excuse Cabrera’s failure to appear. Where written
notice has been provided, section 1229a(b)(5)(C)(i) of title 8
provides that the alien demonstrate that the failure to appear for a
hearing was because of "exceptional circumstances." 8 U.S.C. §
1229a(b)(5)(C)(i). Exceptional circumstances refers to things
beyond the control of the alien like “serious illness of the alien or
serious illness or death of the spouse, child, or parent of the alien,
but not including less compelling circumstances,” 8 U.S.C. §
1229a(e)(1) (parentheticals omitted). Cabrera conceded that she
failed to appear, and waiting for a witness to arrive and her brother-
in-law’s lack of knowledge about the fastest route to the
Courthouse is not an exceptional circumstance of the type
contemplated by the statute.

        We likely would agree with the Attorney General’s
interpretation of the statute if we had to reach the “exceptional
circumstances” question, but see Herbert v. Ashcroft, 325 F.3d 68,
71-72 (1st Cir. 2003) (questioning whether there was a true failure
to appear but holding that exceptional circumstances existed to
justify reopening where petitioner was only thirty minutes late and
his counsel had previously sought a continuance on the ground that
counsel’s presence was required in federal district court), but,
because we hold that there was no failure to appear, but only slight
tardiness, we need not reach it. See Alarcon-Chavez, 403 F.3d at
345. Where there is no failure to appear in the first instance, there
is no need to show exceptional circumstances. 8 U.S.C. §
1229a(b)(5)(C)(i). Moreover, contrary to the Attorney General’s

                                 12
assertion, Cabrera has never conceded that she failed to appear.
The Attorney General further contends that Jerezano, 169 F.3d 613,
should not extend to the facts of this case because the IJ was no
longer on the bench hearing cases. Like the Fifth Circuit, however,
we conclude that this is a distinction without a difference, because
an alien’s fate “should not turn on whether he had the good fortune
of other hearings being scheduled to begin subsequent to his own.”
Alarcon-Chavez, 403 F.3d at 346 n.9.

       Accordingly, proceedings are to be reopened for de novo
review of the March 11, 2002 decision of the District Director
under INA § 216(c)(3)(D) and a hearing on Cabrera’s I-751 waiver
petition, and, if she desires, on her application for cancellation of
removal under INA § 240A(b). A.R. 143-44.7 At the hearing on
her waiver petition, “the burden of proof shall be on the Attorney
General to establish, by a preponderance of the evidence, that the
facts and information [concerning that the marriage was entered
into in good faith] and alleged in the petition are not true with
respect to the qualifying marriage.” 8 U.S.C. § 1186a(c)(3)(D)
(2006); 8 C.F.R. § 216.4(d)(2).

        Although we express no view on the ultimate merits of
Cabrera’s claim of a legitimate marriage, we note that the District
Director’s March 11, 2002 decision is poorly supported insofar as
it credits the Death Certificate notwithstanding that it is factually
inaccurate, faults Cabrera for not appearing for her personal
interview when in fact the decision itself states that she was
interviewed on September 24, 2001, and states a conclusion that
Cabrera’s marriage to Perez was for reasons other than to gain
entry into the United States, that is inconsistent with the actual
denial of the waiver petition.



       7
          The Attorney General has argued on appeal that Cabrera
is ineligible for cancellation of removal, because she does not meet
the continuous residence requirements of the statute, 8 U.S.C. §
1229b(b)(1), (d) (continuous residence period ends with service of
Notice To Appear). We express no view on the merits of this
argument as it should be addressed in the first instance by an
immigration judge.

                                 13
      We will grant the petition for review, reverse the August 11,
2003 in absentia removal order, and the August 25, 2004 and
November 10, 2004 decisions of the Board of Immigration
Appeals, and remand for further proceedings.




                                14
