          United States Court of Appeals
                     For the First Circuit


No. 15-1266

                         ARSENIO VALDEZ,

                           Petitioner,

                               v.

              LORETTA E. LYNCH,* Attorney General,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                             Before

                 Torruella, Selya, and Thompson,
                         Circuit Judges.


     John H. Ruginski, Jr. on brief for petitioner.
     Channah F. Norman, Trial Attorney, Office of Immigration
Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, and Mary Jane Candaux, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.



                        February 10, 2016




     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
            THOMPSON,     Circuit Judge.        Petitioner Arsenio Valdez

seeks review of an order of the Board of Immigration Appeals

("BIA") denying his request for a so-called "marriage waiver" from

removal.        For the reasons explained below, the petition will be

denied.

                                  BACKGROUND

            Valdez, a citizen and native of the Dominican Republic,

obtained    conditional     permanent   resident     status   in   1996   after

marrying an American citizen the year before.           Their marriage fell

on hard times, and the couple separated in the early 2000s, with

their divorce becoming final in 2008.

            Served with a Notice to Appear in October of 2011, Valdez

conceded removability at a hearing before an immigration judge

("IJ").     At the same time, Valdez sought relief from removal in

the form of an adjustment of status from conditional permanent

resident to permanent resident.         He also asked for a waiver of the

usual requirement to present his status-change request jointly

with his spouse.       He said that he was forced to make this request

on his own, and thus needed a waiver from the joint petition

requirement, because he had "entered into the marriage in good

faith     but    the   marriage   was   terminated    through      divorce   or

annulment."

            After considering Valdez's evidence, the IJ concluded

that Valdez failed to establish he had entered into his marriage


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in good faith.     Accordingly, she ordered him removed to the

Dominican Republic. Valdez appealed to the BIA, which in a written

decision discussed what it saw as a lack of evidence that Valdez

married in good faith, and upheld the IJ's decision in its entirety

after concluding that Valdez "failed his burden of proof to

establish that the marriage was bona fide."

          Aggrieved, Valdez filed a timely petition for review

with this court.

                         STANDARD OF REVIEW

          In   denying   Valdez's   appeal,   the   BIA    discussed   the

evidence adduced before the IJ and the legal arguments Valdez made

as to why the IJ got it wrong.        In affirming the IJ, the BIA

indicated that it had relied on its own reasoning, plus the reasons

"articulated by the [IJ] in her decision . . . ."         Because the BIA

did not simply adopt the IJ's decision, but relied instead on a

combination of its own reasoning and the IJ's, we review the IJ's

and the BIA's decisions together.     Dimova v. Holder, 783 F.3d 30,

35 (1st Cir. 2015).

          The parties agree that Valdez bore the burden of showing

that he entered into his marriage in "good faith."              Lamim v.

Holder, 760 F.3d 135, 137 (1st Cir. 2014).          Whether or not this

burden has been met is a call for the IJ or BIA to make in the

first instance, as the "judgment about whether a marriage was

entered into in good faith is a factual one."        Id. at 138 (citing


                                    - 3 -
Jing Lin v. Holder, 759 F.3d 110, 112 (1st Cir. 2014)).     We must

uphold the factfinder's judgment as to the presence or absence of

good faith "so long as it is 'supported by reasonable, substantial,

and probative evidence on the record considered as a whole.'"   Id.

(quoting Reynoso v. Holder, 711 F.3d 199, 205 (1st Cir. 2013)).

What this all means is that we will only reverse the IJ's or the

BIA's finding on whether a marriage was entered into in good faith

if "the record evidence would 'compel a reasonable factfinder to

reach a contrary determination.'"        Jing Lin, 759 F.3d at 112

(quoting Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir. 2013)).

                            DISCUSSION

                                A.

           First, the lay of the land.    A noncitizen who marries a

United States citizen may obtain conditional permanent resident

status.   See 8 U.S.C. § 1186a(a)(1).     To remove that condition,

the two spouses must file a joint petition with the Department of

Homeland Security asking for it to be removed, and they must do so

within the ninety-day window before the second anniversary of the

noncitizen spouse's attainment of conditional permanent resident

status.   See id. § 1186a(c)(1)(A); 8 C.F.R. § 1216.5(a).   Failure

to file the petition in the time allotted results in termination

of the noncitizen spouse's conditional permanent resident status.

8 U.S.C. § 1186a(c)(2).




                                 - 4 -
          A couple that does not file their petition on time can

jointly apply for a "hardship waiver" of the timing requirement.

See id. § 1186a(c)(4).    If the noncitizen spouse is unable to file

a joint application because the marriage has already ended, he

must show -- among other things -- that he married his ex-spouse

"in good faith."      Id. § 1186a(c)(4)(B).           "Good faith" in this

context means that the noncitizen "intended to establish a life

with [his] spouse at the time" of marriage.              Cho v. Gonzales, 404

F.3d 96, 102 (1st Cir. 2005).       The noncitizen's burden of proving

good faith may be satisfied "by introducing 'evidence relating to

the   amount   of   commitment   by    both       parties   to   the       marital

relationship.'"      Lamim,   760     F.3d   at    137    (quoting     8    C.F.R.

§ 1216.5(e)(2)).

          Evidence of good faith includes the following:

          (i) Documentation relating to the degree to
          which the financial assets and liabilities of
          the parties were combined;

          (ii) Documentation concerning the length of
          time during which the parties cohabited after
          the marriage and after the alien obtained
          permanent residence;

          (iii) Birth certificates of children born to
          the marriage; and

          (iv) Other evidence deemed pertinent . . . .

8 C.F.R. § 1216.5(e)(2).

          Pursuant to this regulation "immigration authorities

[are] to evaluate 'good faith' on the basis of documentation


                                      - 5 -
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."               Lamim, 760 F.3d at 138.

Clearly,     the    regulation     prioritizes        written    evidence         over

testimonial assertions, as three out of the four categories consist

of   "documentation"        or     "certificates."              See     8    C.F.R.

§ 1216.5(e)(2)(i)-(iv); see also Lamim, 760 F.3d at 138 (focusing

our analysis on documentary evidence).           Indeed, it would seem that

oral testimony only falls under the fourth category if "deemed

pertinent"     by     the     immigration      authorities.             8    C.F.R.

§ 1216.5(e)(2)(iv).

                                       B.

             Valdez's flagship argument is that the IJ and BIA should

be reversed because they ignored probative and uncontroverted

evidence in the record demonstrating that he married in good

faith.1    The government, by contrast, says that Valdez's evidence

was not strong enough to compel us to reverse the IJ and BIA.

             Here, the IJ and the BIA held only that Valdez failed to

carry his burden of proving that he married in good faith.                        Our

review of the record confirms that the IJ's and the BIA's decisions




     1 He also throws in a couple references to "due process," but
fails to develop an argument along those lines. Therefore, any
due process argument that could have been made is waived. United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


                                        - 6 -
are supported by reasonable, substantial, and probative evidence.

Nothing comes close to compelling us to reach the opposite result.

              Valdez testified in front of the IJ that he (then age

37) and Evelyn Mercedes Veracruz (age 50) got married in Puerto

Rico in 1995, and that their marriage ended in divorce in 2008.

They married because Valdez "fell in love with her" after they

met.       He did not testify about when or under what circumstances

they met, what their life was like before or after their wedding,

or provide any details about the wedding ceremony.

              After the wedding, Valdez and his wife, who had lived

together before marriage, continued cohabitating in Puerto Rico

for at least part of 1995 (the exact timeframe is by no means

clear).      In 1996, Valdez moved to Rhode Island (for reasons not

disclosed in this record), where he began working, while his wife

stayed behind on the island.        It was not until 1998 that Valdez

went to Puerto Rico and brought his wife back to Pawtucket, where

they lived together for "about three months."         Valdez explained

that his wife never wanted to be in Rhode Island due to the cold

weather and her arthritis, so she returned to Puerto Rico.      Valdez

would "send her a lot of money" there, but his cousins in Puerto

Rico told him that she would "drink that money."2




       2   No one asked Valdez to explain what he meant by this remark.


                                     - 7 -
            Valdez testified his marriage was "valid" and that it

did not produce any children because his wife "couldn't give

birth."   He said that the two did not have joint ownership of any

real estate, but that both his and his wife's names were on one of

his apartment leases.      In addition, Valdez said they owned a car

together (although his wife's name was not on the title because

she didn't have a driver's license), and that they had a joint

bank account at Fleet National Bank.

            Sometime around the year 2000, Valdez "started noticing"

that his wife was having an affair.       Valdez pointed to the affair

-- along with his wife's unwillingness to stay in Rhode Island --

as causing their separation.       They parted company around December

2001, and Valdez "lost contact" with her in 2002 or 2003.

            Valdez also submitted various documents in support of

his claim.    Included among them were numerous federal and state

tax returns as evidence of the couple's commingling of financial

assets and liabilities.        See 8 C.F.R. § 1216.5(e)(2)(i).   Valdez

did not produce any leases or other documents to back up his

assertion that he and his wife lived together following their

marriage.      See   id.   §    1216.5(e)(2)(ii).    Furthermore,   and

unsurprisingly in light of his testimony that his wife was unable

to bear children, Valdez did not submit birth certificates from

any children born to the marriage.       See id. § 1216.5(e)(2)(iii).




                                      - 8 -
             Valdez's other documents must be considered as "other"

pertinent evidence because they did not bear on commingling of

assets or the amount of time the couple lived together.                 See id.

§ 1216.5(e)(2)(iv).       In that vein, Valdez introduced a signed

statement "affirm[ing] and attest[ing] and testif[ying] before God

and men" that his marriage "was a true marriage," along with two

affidavits from friends who did not mention his marriage, but

attested to his good moral character.            Finally, he submitted a

copy of the State Department's country report for the Dominican

Republic and a background check from the Hartford (Connecticut)

Police Department showing he had no criminal record in that city.3

             Considering the evidence "as a whole," Lamim, 760 F.3d

at 138, we find that Valdez's presentation was not so compelling

as   to    permit   us   to   find   fault    with   the   IJ's   and     BIA's

determinations that he had failed to carry his burden of proof.

             First, Valdez's testimony is clearly insufficient to

carry his burden of showing that he married in good faith.                True,

he did testify that his marriage was "valid."                 But when two

individuals "enter into a good-faith marriage, their wedding day

is a significant (and, therefore, memorable) event," McKenzie-

Francisco v. Holder, 662 F.3d 584, 587 (1st Cir. 2011), and Valdez




     3    This document indicated Valdez lived there at one point.


                                      - 9 -
gave no details about the ceremony.            So his bald assertion that

his marriage was "valid" does him no good.

           And his barebones testimony about his and his wife's

living and financial arrangements cannot carry the day either.             We

have never held that testimony as general and bereft of detail as

Valdez's is sufficient to make out a "good faith" showing.             To the

contrary, our caselaw indicates such testimony is simply not

enough.     Cf.   Reynoso,    711    F.3d    at   207   (finding    that   the

petitioner's    testimony    was    not   sufficient    to   "overcome[]   the

weaknesses in the documentary evidence" where the details of "her

oral      and     written      statements         contain[ed]        numerous

inconsistencies").

           The documents Valdez submitted do not get him over the

hump.   The tax returns do little to help, as the only one between

1996 and 2001 purporting to bear his wife's signature is the 2000

Rhode Island return.   The remainder were either blank or signed by

Valdez only, even though they were filed as joint returns.                 Not

one lists an occupation for, or any income attributable to,

Valdez's wife.    Plainly, the tax returns provide no evidence of

any commingling of financial assets or liabilities.                Valdez did

not come forward with any other documents evidencing commingling.

The record is similarly devoid of documentary evidence showing the

couple lived together after they were married, and there are no

birth certificates to consider.


                                      - 10 -
           The remaining documents are of no assistance either, as

Valdez's own written statement added nothing to his testimony

before the IJ, and the affidavits from his friends did not so much

as mention his marriage.        And it takes but a moment's thought to

conclude   that   the   State   Department's   country   report   and   the

background check from the Hartford Police have nothing to say about

whether Valdez married in good faith.

           In accordance with our prior decisions, we conclude that

the scant testimonial and documentary evidence in the record is

far from sufficient to allow us to overturn the IJ's and BIA's

well-founded conclusion that Valdez failed to meet his burden of

showing that he married in good faith.4         See Lamim, 760 F.3d at



     4 This case is a far cry from Cho v. Gonzales, 404 F.3d 96
(1st Cir. 2005), where we concluded that the BIA erred in finding
that the petitioner failed to meet the burden of showing good
faith. Cho is instructive in its differences. The uncontradicted
evidence in that case was corroborated by documents and showed
that the couple engaged in a lengthy courtship with frequent phone
calls prior to marriage, that they ultimately moved in together,
and that they "jointly enrolled in a health insurance policy, filed
tax returns, opened bank accounts, entered into automobile
financing agreements, and secured a credit card."      Id. at 103.
The petitioner also "introduced extensive counseling records from
the period following her separation [from her husband] which
detailed her therapists' perceptions that she harbored a strong
desire to make her marriage work and her serious depression over
its troubles and eventual failure." Id.
     Valdez has come forward with nothing remotely similar to the
evidence in Cho.    Given the dearth of evidence in this record
bearing on good faith, we need not speculate as to the quantum of
proof required for a petitioner to meet the burden of showing good
faith. Wherever that line may be, Valdez does not approach it.


                                     - 11 -
138-39 (where the record was devoid of "documentation 'evidencing

commingling' of the couple's finances, contained only 'limited'

evidence   of   cohabitation,   .   .    .   '[and]   lacked   the   type   of

memorabilia that marriages typically produce[,]' . . . the [BIA]

could not say that [the petitioner] entered into his marriage with

[his ex-spouse] in 'good faith.'" (first alteration in original));

Jing Lin, 759 F.3d at 112 (taking into account factors including

the petitioner's failure "to offer any documentary evidence, such

as a joint bank account or general commingling of assets, which

typically accompanies a valid marriage," that the "couple lived

apart for nearly all of their marriage," and the petitioner's lack

of knowledge of "basic details about her husband, his family, and

his life before they met").

                                    C.

           Attempting to make up for his inadequate evidentiary

presentation and avoid denial of his petition for review, Valdez

advances a couple of last-ditch arguments.

           First, he says the IJ and the BIA erroneously required

him to meet the "well-nigh impossible" burden of demonstrating

"his spouse's actual intents or motives" in marrying him.             We see

nothing in the IJ's or BIA's decisions indicating that Valdez was

held to such a standard.   And Valdez himself doesn't even point to




                                    - 12 -
any language in either decision to support this argument.5                 So we

reject it out of hand.

               Finally, Valdez intimates that he should not be faulted

for being unable to produce corroborative documentary evidence

because its absence "was the consequence of a protracted delay, of

a decade" in the government's asking him for it.                       This is a

nonstarter.

               The    requirement   to   present   documentary    evidence      to

corroborate an applicant's testimony has existed for decades. See,

e.g., Nyonzele v. INS, 83 F.3d 975, 980 (8th Cir. 1996) (discussing

8 C.F.R. § 216.5(e)(2), the then-effective regulation, and its

call for production of "documentation concerning [a couple's]

combined financial assets and liabilities, the length of time

during which they cohabited after the marriage and after the alien

obtained conditional permanent resident status, and any other

relevant evidence"); Matter of Laureano, 19 I & N Dec. 1, *3

(B.I.A. 1983) (recognizing that evidence of good faith "could take

many       forms,    including,   but    not   limited   to,   proof    that   the

beneficiary [i.e., the noncitizen spouse] has been listed as the

petitioner's spouse on insurance policies, property leases, income

tax forms, or bank accounts" (citing Matter of Phillis, 15 I & N


       5
       His appellate brief's quotation of the IJ's conclusion that
Valdez "has not met his burden of proving that he entered into a
qualifying marriage in good faith," actually cuts in favor of
finding that the IJ applied the correct legal standard.


                                          - 13 -
Dec. 385 (B.I.A. 1975)).        Valdez, who as best we can tell from the

record was represented by counsel throughout these proceedings,

can hardly claim to have been unaware that the IJ and BIA might

expect him to back up his testimony with documentary proof.

           But even more importantly, Valdez never asked the IJ for

a continuance to obtain documents, and he did not tell the IJ that

he couldn't get ahold of anything as a result of the passage of

time.     He     also    failed   to     raise    any   argument     about     the

unavailability of documents in his appeal to the BIA.                     Because

"[t]his court lacks jurisdiction over arguments not pressed before

the BIA," Jing Lin, 759 F.3d at 112 n.1, we may not and do not

consider this point.

                                  CONCLUSION

           Let    us    be   perfectly   clear:    we   do   not   hold    that   a

petitioner can never establish that he married in good faith based

in whole or in part on his own testimony.           What we do hold is that

the decisions of both the IJ and the BIA concluding that Valdez

failed to carry his burden of proof in this instance are supported

by   substantial   evidence.      For    the   foregoing     reasons,     Valdez's

petition for review is denied.




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