         13-1885
         Orellana v. Holder
                                                                                      BIA
                                                                               Straus, IJ
                                                                             A074 916 212
                                                                             A094 892 836
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHESTER J. STRAUB,
 8                SUSAN L. CARNEY,
 9                     Circuit Judges.
10       _____________________________________
11
12       HECTOR LEONARDO MOROCHO ORELLANA,
13       ANGELICA GUTIERREZ MORALES,
14
15                    Petitioners,
16
17                     v.                                       13-1885
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONERS:              GLENN LOUIS FORMICA (Elyssa Nicole
26                                     Williams, on the brief), Formica
27                                     Williams, P.C., New Haven, CT.
28
29       FOR RESPONDENT:               JESSICA EDEN SHERMAN, Office of
30                                     Immigration Litigation, Civil
31                                     Division (Song E. Park, Senior
32                                     Litigation Counsel, Office of
33                                     Immigration Litigation, Civil
 1                          Division; Stuart F. Delery,
 2                          Assistant Attorney General, Civil
 3                          Division; Keith I. McManus, Senior
 4                          Litigation Counsel, on the brief),
 5                          United States Department of Justice,
 6                          Washington, DC.
 7
 8        UPON DUE CONSIDERATION of this petition for review of a
 9   Board of Immigration Appeals (“BIA”) decision, it is hereby
10   ORDERED, ADJUDGED, AND DECREED that the petition for review
11   is DENIED.
12
13        Petitioner Hector Leonardo Morocho Orellana, a native
14   and citizen of Ecuador, seeks review of an April 15, 2013
15   order of the BIA, affirming the April 19, 2011 decision of
16   Immigration Judge (“IJ”) Michael W. Straus, which ordered
17   him removed. See In re Hector Leonardo Morocho Orellana,
18   No. A074 916 212 (B.I.A. Apr. 15, 2013), aff’g No. A074 916
19   212 (Immig. Ct. Hartford Apr. 19, 2011); In re Angelica
20   Gutierrez Morales, No. A094 892 836 (B.I.A. Apr. 15, 2013),
21   aff’g No. A094 892 836 (Immig. Ct. Hartford Apr. 19, 2011).
22   We assume the parties’ familiarity with the underlying
23   facts, the procedural history, and the issues presented for
24   review.
25
26        We review the IJ’s decision as supplemented by the BIA.
27   See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
28   Although we lack jurisdiction to review the discretionary
29   denial of an adjustment application, see 8 U.S.C.
30   § 1252(a)(2)(B)(i), we can review a denial based solely on
31   the alien’s statutory ineligibility to adjust status, see
32   id. § 1252(a)(2)(D) (permitting review of constitutional
33   claims and questions of law); Sepulveda v. Gonzales, 407
34   F.3d 59, 62-63 (2d Cir. 2005) (an alien’s statutory
35   eligibility for relief is reviewable). Findings of fact
36   that are made in connection with statutory eligibility
37   determinations are reviewed for substantial evidence. See 8
38   U.S.C. § 1252(b)(4)(B); Sumbundu v. Holder, 602 F.3d 47, 52
39   (2d Cir. 2010) (noting that Sepulveda established that a
40   non-discretionary decision made in connection with an
41   eligibility determination may be reviewed for substantial
42   evidence).
43
44       An alien who entered the United States without

                                  2
 1   inspection, such as Orellana, is ineligible for an
 2   adjustment of status to lawful permanent resident unless he
 3   is the beneficiary of a visa petition filed on or before
 4   April 30, 2001 that was “approvable when filed.” 8 U.S.C.
 5   § 1255(i); 8 C.F.R. § 1245.10(a)(1). The regulations on
 6   such grandfathering define “approvable when filed” as
 7   “properly filed, meritorious in fact, and non-frivolous.” 8
 8   C.F.R. § 1245.10(a)(3). A marriage-based visa petition is
 9   “meritorious in fact” only if it is “based on a genuine
10   marriage in which the parties intended to share a life as
11   husband and wife, not a marriage of convenience designed
12   solely to confer an immigration benefit on one of the
13   parties.” In re Riero, 24 I. & N. Dec. 267, 268 (B.I.A.
14   2007); see Linares Huarcaya v. Mukasey, 550 F.3d 224, 230
15   (2d Cir. 2008) (per curiam) (approving of Riero’s
16   interpretation).
17
18        Under this law, Orellana could be eligible to adjust
19   status only if he demonstrated that the visa petition filed
20   by ex-wife Luz Garzon was properly filed and that their
21   marriage was bona fide. The agency acted within its
22   discretion in finding that he failed to do so. As a
23   threshold matter, Orellana never produced any evidence that
24   when she married him, the bride had divorced her prior
25   husband. If Garzon was married to someone else, her
26   marriage to Orellana was not bona fide, even if they might
27   otherwise have intended to share a life as husband and wife.
28
29        But the record also lacked evidence of such an
30   intention. Orellana admitted that he learned about Garzon’s
31   ex-husband only after their interview with the Immigration
32   and Naturalization Service in 1999; that he met a few of her
33   friends, but not her family; and that he never visited her
34   in jail--indeed, he did not even know why she was in jail.
35   Combined with Garzon’s failure to disclose her prior
36   marriage on the visa petition, the agency had discretion to
37   find that the petition was neither properly filed nor
38   meritorious.
39
40        In the main, Orellana argues that the agency overlooked
41   the documentary evidence he presented concerning his
42   relationship with Garzon. But, as the IJ observed, most of
43   those documents “do not address that marriage, or have
44   anything to do with his ex-wife”; they demonstrated that

                                  3
 1   Orellana lived in the “marital home,” but not that he and
 2   Garzon lived there together.
 3
 4        Orellana posits that he had no reason to enter a sham
 5   marriage because Luis Rojas, who testified at his merits
 6   hearing, could have sponsored him. That may be so. But
 7   even if Orellana did not marry Garzon solely for an
 8   immigration benefit, he never produced proof that Garzon was
 9   free to marry him.
10
11        For the foregoing reasons, the petition for review is
12   DENIED. As we have completed our review, the stay of
13   removal that the Court previously granted in this petition
14   is VACATED.
15
16                              FOR THE COURT:
17                              Catherine O’Hagan Wolfe, Clerk




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