          United States Court of Appeals
                      For the First Circuit

No. 13-2451

                     ALEXON NASSARALLA LAMIM,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                  Thompson, Kayatta and Barron,

                         Circuit Judges.



     Walter J. Gleason, Jr. on brief for petitioner.
     Karen L. Melnik, Office of Immigration Litigation, United
States Department of Justice, Stuart F. Delery, Assistant Attorney
General, Civil Division, and Douglas E. Ginsburg, Assistant
Director, on brief for respondent.



                          July 29, 2014
           BARRON, Circuit Judge.           Petitioner Alexon Nassaralla

Lamim, a native and citizen of Brazil, seeks review of a decision

of the Board of Immigration Appeals that denied his request to

alter his permanent resident status so that it would no longer be

conditional.     Lamim was accorded that status by virtue of his

marriage to a citizen of this country.         To succeed in his request,

Lamim was required to show that he entered into his marriage in

good faith. Because substantial evidence supports the Board's

finding that he did not make that showing, we deny Lamim's petition

for review.

                                     I.

           Lamim lawfully entered the United States on a tourist

visa in February 2001.      He married Tracie Marie Silva, a United

States citizen, on May 24, 2004.       The government therefore granted

him   conditional     permanent    resident     status.       See   8    U.S.C.

§ 1186a(a)(1).   That status applies to non-citizens like Lamim who

marry citizens of this country.            Because the permanent resident

status is conditional, however, immigration authorities may later

revoke it -- and then institute removal proceedings -- on the

ground   that   the   underlying    marriage     was   a   sham.        See   id.

§ 1186a(b)(1)(A)(I); id. § 1227(a)(1)(D)(I).

           To protect against this possibility, a married couple may

take steps to render the non-citizen spouse's status no longer

conditional.     In    particular,    they    may   jointly    petition       the


                                     -2-
Secretary of Homeland Security for this change in status during the

ninety-day period before the second anniversary of the non-citizen

spouse's having obtained conditional permanent resident status.

See id. § 1186a(c)(1)(A), (d)(2)(A).       If no petition is filed in

that time period, the non-citizen spouse may still succeed in

securing the change in status.    To do so, the spouse must seek what

is known as a "hardship waiver."        See id. § 1186a(c)(4).   If the

pair have divorced, the request for the waiver need not be filed

jointly with the citizen spouse.     Instead, the non-citizen spouse

may file singly.     To qualify for the waiver, however, the non-

citizen spouse must show that he was not at fault in failing to

file by the deadline and that "the qualifying marriage was entered

into in good faith by the alien spouse."       Id.

          Lamim and Silva did not seek to convert Lamim's status by

the deadline, and, in November 2007, their marriage ended.         When

Lamim filed for a hardship waiver in January 2008, therefore, he

did so on his own.   See id. § 1186a(c)(4)(B).

          The United States Citizenship and Immigration Service

denied Lamim's waiver request on August 6, 2010. The Department of

Homeland Security served Lamim with a Notice to Appear in removal

proceedings that same day.       See id. § 1227(a)(1)(D)(I).      Lamim

renewed his waiver request in the immigration court, but the

outcome was the same.   The Immigration Judge found that Lamim had

failed to make the showing necessary to justify a hardship waiver.


                                  -3-
Lamim appealed, but the Board of Immigration Appeals affirmed. In

doing so, the Board concluded that Lamim had failed to establish

that he entered into the marriage with Silva in good faith.                   See

id. § 1186a(c)(4)(B).         Lamim now seeks review of that decision.

                                      II.

              The burden of proof is on Lamim to show that he entered

into the marriage with Silva in good faith.             McKenzie-Francisco v.

Holder, 662 F.3d 584, 587 (1st Cir. 2011).               He can satisfy that

burden   by     introducing     "evidence    relating    to   the    amount    of

commitment by both parties to the marital relationship."               8 C.F.R.

§ 1216.5(e)(2).

              While Lamim makes some effort to argue that the record

shows that he in fact met his burden, his central challenge to the

denial of his waiver request is that it rests on a legal error.

Lamim roots that error in the oral decision of the Immigration

Judge,   which    the   Board    affirmed.      Lamim     contends    that    the

Immigration Judge, and thus the Board, erroneously relied on the

fact that, during his marriage to Silva, he had an affair that

resulted in a child with the other woman.                According to Lamim,

therefore, the denial of his request rested on an improper moral

judgment regarding his adultery rather than on a fair analysis of

the evidence in support of his waiver request.

              But Lamim's characterization of the basis for the denial

of his request is wrong.          The Board did affirm the Immigration


                                      -4-
Judge, but it did not adopt its opinion.                 Accordingly, "[t]he

Board's determination . . . is the final agency decision under

review."      Martinez v. Holder, 734 F.3d 105, 111 n.15 (1st Cir.

2013).       And while the Board did mention the affair and the

resultant child in reaching its conclusion, it did so only in the

course of scrutinizing Lamim's evidence in light of the Justice

Department's guidance about what may constitute "evidence relating

to   the    amount   of   commitment    by    both   parties   to    the   marital

relationship."       8 C.F.R. § 1216.5(e)(2).         That guidance instructs

immigration authorities to evaluate "good faith" on the basis of

documentation concerning the couple's cohabitation, the degree to

which the couple's finances were commingled, any children born to

the marriage, or other pertinent evidence.             Id. § 1216.5(e)(2)(i)-

(iv).      And that was precisely the evidence the Board looked for in

evaluating Lamim's waiver request.

              With   regard   to   documentation      relating      to   financial

commingling, id. § 1216.5(e)(2)(I), the Board found that Lamim did

submit tax returns for 2005 and 2006, but it concluded that those

returns did not help Lamim because they showed that he filed as

"married filing separately."           And while the Board determined that

Lamim had shown that he and Silva did have a joint bank account, it

noted that Lamim admitted on cross-examination that the account was

joint in name only: Silva neither drew from nor deposited into the

account. With regard to documentation concerning cohabitation, id.


                                        -5-
§ 1216.5(e)(2)(ii), the Board noted that the rent receipts Lamim

submitted for the properties he claimed to have shared with Silva

were in his name only.   The Board further pointed out that Silva's

name was absent from the deed to the house Lamim purchased in

December 2005. With regard to "birth certificates of children born

to the marriage," id. § 1216.5(e)(2)(iii), the Board noted that

although the record revealed no children born to Lamim and Silva,

Lamim did have a child in September 2005 with another woman.   The

Board added that Lamim had not listed this child on his waiver

request form, even though it asks applicants to do so.    Finally,

the Board found that the three letters Lamim submitted in support

of his application shed little light on the marital relationship.

          Contrary to Lamim's characterization, therefore, the

decision to deny his waiver request placed no special emphasis on

the affair or the child it produced.    Rather than having focused

unduly on the affair or basing its finding on a moral judgment

about infidelity, as Lamim claims, the Board instead analyzed the

waiver request on the basis of the very considerations it should

have examined.

                                III.

          Having addressed Lamim's objection about the extent of

the Board's reliance upon the affair, we are left with only one

final question: whether the record provides us with a basis to

affirm the Board's finding that Lamim failed to meet his burden of


                                -6-
showing he entered into his marriage with Silva in good faith?       We

have no doubt that we should.

           In the context of a waiver request, a Board's judgment

about whether a marriage was entered into in good faith is a

factual one.   Jing Lin v. Holder, ___ F.3d ___, ___ (1st Cir. 2014)

[No. 12-2134, slip op. at 5].        Accordingly, we must uphold the

Board's finding on that point so long as it is "'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" Reynoso v. Holder, 711 F.3d 199, 205 (1st

Cir. 2013) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481

(1992)).

           Considered as a whole, the record accords with the

Board's conclusion.     The record lacked, in the Board's words, any

documentation "evidencing commingling" of the couple's finances,

contained only "limited" evidence of cohabitation, and "lack[ed]

detail."   The Board thus found that "the record lacked the type of

memorabilia    that   marriages   typically   produce."   Without   such

evidence, the Board could not say that Lamim had met his burden of

showing that he entered into his marriage with Silva in "good

faith."    Because we cannot say on this record that "a reasonable

factfinder would have to" reach a contrary conclusion, id., we must

deny the petition.1


     1
       Lamim separately filed a motion to stay removal pending
resolution of his petition for review. Given our resolution, we
deny that motion as moot.

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