Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A26-575-690
Before: Schroeder, Fletcher, and Alarcon, Circuit Judges.
Jeoung Ok Lee, a Korean citizen, petitions for review of the Board of Immigration Appeals' ("BIA" or "Board") dismissal of her appeal from an order of deportation on the grounds of entering into a fraudulent marriage, 8 U.S.C. § 1184(d), and from a denial of waiver of deportation, 8 U.S.C. § 1251. During the deportation hearing Lee moved for a continuance to allow her husband to submit a petition in her behalf to the district director for adjustment of status. The immigration Judge ("IJ") denied the motion. Subsequently, the district director denied the petition. The BIA dismissed her appeal from that denial. Asserting pendent jurisdiction, she attempts to appeal this second dismissal in addition to the first upholding the order of deportation. Lee argues that she did not enter into her first marriage with fraudulent intent and that the government failed to meet its burden of proof with respect to intent. She contends that even if deportable, she is statutorily eligible for waiver and merits the exercise of favorable discretion. Lee did not appeal the IJ's denial of voluntary departure.
The Board had jurisdiction to review the IJ's decision under 8 C.F.R. §§ 3.1(b)(2), 242.21(a). Our jurisdiction rests on 8 U.S.C. § 1105a(a) (Immigration and Nationality Act). Since the panel does not have jurisdiction to review the BIA's second dismissal,*fn1 we affirm the BIA's first dismissal only.*fn2
In 1985, at the age of eighteen, Korean citizen, Jeoung Ok Lee, entered the United States on a "K-1" or "fiancee" nonimmigrant visa. Within a month of her arrival she married her first husband, Nicklous Teegarden ("Teegarden") , an American citizen. Teegarden and Lee met in Korea before she journeyed to the United States. She could not speak English, nor he, Korean. Lee alleges that her older sister, Yang So Lee ("Sunny"), in accordance with Korean custom, arranged the marriage. Teegarden attests, however, that Sunny paid him to marry Lee and that he never intended to enter into a bona fide marriage. Although the plan had been for them to marry in Korea, a Korean marriage broker advised applying for a "K-1" visa instead.
After the marriage, Teegarden, Lee, and Sunny lived in the same trailer, but the married couple did not share a bedroom. Although they had sex together on occasion, it was not with the approval of the elder sister. In fact, as soon as their sexual liaisons were discovered, Sunny evicted Teegarden from the trailer and forbade Lee to see him. Several months later Teegarden reported the arrangement he had made with Sunny to the INS. In November, 1986 the INS issued an order to show cause ("OSC") charging Lee with deportability. AR at 186.*fn3
Prior to her arrest by the INS, Lee obtained a divorce from Teegarden. While waitressing at her sister's restaurant she met and married American citizen, Scott Christian ("Christian"). Her second marriage took place in October, 1986, also prior to her arrest. Lee and Christian remain married and have two citizen children. Christian filed a petition with the district director to have Lee's status adjusted.
During deportation proceedings only two witnesses testified: Teegarden and Christian. Neither Sunny nor Lee testified. A Korean interpreter was present to translate the proceedings. AR at 95. Teegarden testified that Lee knew about the fraudulent nature of their marriage. AR at 132. He admitted to participating fully in the fraud and receiving $3,500 for his services. Prior to the IJ's ruling, Lee moved for a continuance in order to allow Christian to file the petition for adjustment of her status. AR at 160. The motion was denied on the ground that adjustment would be denied as a matter of discretion. The IJ subsequently found Lee deportable. On the basis of the evidence presented to him the IJ concluded that Lee had entered into an arranged marriage but "that the arrangement between Mr. Teegarden, Sunny and [Lee] was conceived in fraud: that there was no intent at the inception of the marriage for [Lee] and Mr. Teegarden to share anything other than a marriage of convenience." AR at 84-85. The IJ also denied Lee the privilege of voluntary departure "in view of the fraud that [had] been perpetrated against the United States." AR at 86. Based on the IJ's finding the district director denied Christian's petition to adjust Lee's status. Blue Brief, Appendix at 2.
The IJ ordered Lee deported on April 24, 1987. AR at 78. Christian filed a petition with the district director the same day. After hearing oral argument on July 31, 1991, the BIA rendered its decision on the appeal from deportation on February 4, 1992. AR at 2. In the meantime, on December 2, 1991, the district director denied Christian's petition. The BIA upheld this determination in a separate decision also filed on February 4, 1992. Blue Brief, Appendix at 1 & n.1. Lee's notice of appeal from the IJ's decision ordering deportation, refusing waiver of exclusion, and denying voluntary departure did not appeal the voluntary departure determination. AR at 74.
"In determining the sufficiency of the evidence [for finding a marriage to be fraudulent], judicial review is limited to whether the findings of the immigration Judge are supported by 'reasonable, substantial, and probative evidence.'" Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir. 1979) , cert. denied, 449 U.S. 828 (1980); see also Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985).
Denial of relief from deportation pursuant to 8 U.S.C. § 1251(a)(1)(H), like other "forgiveness provisions," is subject to review for an abuse of discretion. Braun v. INS, 992 F.2d 1016, 1019 (9th Cir. 1993). The BIA's factual findings in support of statutory ineligibility are reviewed for substantial evidence. Id. at 1018. This standard "requires ...