                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2004

Juarez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1740




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Recommended Citation
"Juarez v. Atty Gen USA" (2004). 2004 Decisions. Paper 906.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/906


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                                                        NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _______________

                                      No. 03-1740
                                   ________________

                                   NESTOR JUAREZ,
                                                            Petitioner

                                            v.

               JOHN ASHCROFT, Attorney General of the United States,

                                                    Respondent
                      ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                 (INS No. A43-664-898)
                     _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                March 26, 2004
                     Before: AMBRO, CHERTOFF and BECKER,
                                   Circuit Judges

                                 (Filed March 29, 2004)


                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       This is a petition for review by Nestor Juarez. For the reasons that follow, we

deny the petition. Because the parties are fully familiar with the background facts and
procedural history, we need not set them forth, and limit our discussion to our ratio

decidendi.

       First, the government contends that the Court lacks jurisdiction over Juarez’s

challenge to the INS District Director’s decision because the Immigration Judge (“IJ”)

explicitly stated that her decision was not based on petitioner’s interview with the INS or

on the reasons stated in the INS District Director’s decision. W e will not belabor this

point. The government is correct about the tenor of the IJ’s statement, which was that

“[t]he basis of the Court’s decision . . . is not in any way influenced by the contents of the

denial letter provided by the District Director.” The IJ then proceeded to decide the case

based on the remaining testimony and documentary evidence that was before the

Immigration Court. Because the IJ did not adopt the District Director’s decision, that

decision is not before the Court. Juarez’s attacks on the procedures used by Officer

Zanotti when she interviewed him and Ms. Brantley, and his claims that the charging

document was “improperly issued,” were not raised before the IJ and are therefore

waived.

       The principal question on appeal, as we see it, is whether substantial evidence

supports the Board and the IJ’s decisions denying the petition to waive the condition for

Juarez’s admission as a lawful permanent resident. The history of the putative marital

relationship between Juarez and Brantley is jumbled. Critical, however, are several facts.

First, Juarez admits that from 1993 to 1996 he and Brantley filed separate tax returns,



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each claiming “Head of Household” status from different addresses. While the returns

were later amended, it was permissible for the IJ to draw the inference from the numerous

separate filings that the couple were in fact not living together. Their later correction of

the tax records does not compel the conclusion that they actually lived together from 1993

to 1996, when they filed the separate returns. Second, there was significantly inconsistent

testimony by Juarez and Brantley about the number and lengths of their separation(s), and

about where they resided at different times. In our view, the IJ was entitled to: (1) make

an adverse credibility judgment about the bona fides of the Juarez-Brantley marriage; (2)

conclude that “the marriage was entered into for immigration purposes only”; (3) deny

Juarez’s petition to remove the condition; and (4) order him removed to Peru.

       Juarez remonstrates at great length that the decisions of the District Director,

Immigration Judge, and Board of Immigration Appeals were impermissibly based upon

racial and ethnic profiling and, thus, were discriminatory in nature. We find utterly no

basis in the record for these claims; for the claim that the INS attorney was confused; for

the claim that the Spanish language interpreter was incompetent; or for any other claims

of procedural irregularities.

       The petition for review will be denied.




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