Tillery v. Holder, Jr.

2016 | Cited 0 times | First Circuit | May 11, 2016

United States Court of Appeals For the First Circuit

No. 14-1193








Howard, Chief Judge, Selya and Lipez, Circuit Judges.

Thomas Stylianos, Jr. on brief for petitioner. Stuart F. Delery, Assistant Attorney General, Jennifer P. Levings, Senior Litigation Counsel and Tim Ramnitz, Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

May 11, 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.

HOWARD, Chief Judge. Petitioner Sonia Peters Tillery

overstayed her visa and was later subjected to removal proceedings.

In response Tillery applied, unsuccessfully, for special rule

cancellation of removal for battered spouses, a relief provision

enacted pursuant to the Violence Against Women Act of 1994

("VAWA"). See 8 U.S.C. § 1229b(b)(2)(A). In her petition, she

challenges the BIA's determination that she needed to demonstrate a

good faith marriage to be eligible for VAWA relief. We are unable

meaningfully to review the BIA's ruling in this case, and so we

vacate the BIA's decision and remand for proceedings consistent

with this opinion.


Tillery, a native of St. Vincent and the Grenadines,

entered the United States in February 2004 (then, as Sonia Peters).

She was allowed to stay until May 13, 2004, as a non-immigrant B-1

temporary visitor for business. 8 U.S.C. §§ 1101(a)(15), 1201(a).

Tillery remained in this country beyond the appointed time and

eventually met and married Keial Tillery, a United States citizen.

Shortly after their May 2008 wedding, Tillery's husband

was incarcerated and remained imprisoned for approximately a year.

He was released in June 2009, and, according to Tillery, the

couple resumed living together along with a third person, Annis

Toney. Tillery says that her husband soon began verbally and

physically abusing her, including forcing her to engage in sexual -2-

conduct against her will. At the same time, he pursued an I-130

spousal visa petition on her behalf, which the government denied

after he failed to appear at the scheduled interview in August

2009. According to Tillery, her husband disappeared the day before

the interview, and she has not heard from him since.

The Department of Homeland Security initiated removal

proceedings against Tillery for overstaying her original temporary

visa. Conceding removability, Tillery indicated her intent to

apply for VAWA special rule cancellation of removal. See 8 U.S.C.

§ 1229b(b)(2). To qualify for this discretionary relief, an

applicant is required to demonstrate: (i) battery or extreme

cruelty by a spouse who is a United States citizen; (ii) a

continuous period of physical presence; (iii) good moral character;

(iv) not having an aggravated felony conviction and not being

inadmissible or deportable for certain specified reasons prescribed

by statute (though, an agency waiver may apply); and (v) extreme

hardship following removal. Id. § 1229b(b)(2)(A).

In 2010, Tillery filed her VAWA application (through a Form

EOIR-42B), and the Immigration Judge ("IJ") held a merits hearing

in February 2012, during which Tillery and the housemate, Toney,

testified to the alleged abuse. Their collective description,

however, gives very little substantive detail. Indeed, Tillery's

entire direct testimony spans a total of six transcript pages, with

a mere eight questions and answers (about one and one-half -3-

transcript pages) devoted to the incidents of domestic abuse.

Toney's account adds little more than a brief description amounting

to about a half-page of transcript.

During the hearing, the IJ focused on discrepancies between

the two witnesses' accounts of the married couple's living

arrangement during the time frame when the alleged abuse occurred.

For example, while Tillery claimed that they lived at the

apartment together after her husband was released from prison,

Toney testified that Tillery's husband Keial only "visited" and

"slept over once in a while." Toney also explained that Keial

Tillery "never really lived there," and that when Keial was

released from prison, Sonia Tillery "wouldn't allow him in [her]

apartment because he was getting more violent and swearing."

To investigate his concerns about the inconsistencies, the

IJ recalled the petitioner to the witness stand. Her subsequent

testimony left the IJ troubled about the sincerity of the marriage

itself. Counsel for Tillery and for the government disagreed over

whether Tillery was required to prove that hers was a good faith

marriage in order to be eligible for VAWA relief. Neither side,

however, provided the IJ with legal authority on that point.

In a written decision denying the application, the IJ

expressed doubts about whether "the marriage was a sincere

marriage" and further remarked that Tillery's behavior "subsequent

to her marriage and the fact that she has testified non-credibly -4-

with respect to the living arrangements raises the inference that

the marriage was not for purposes other than obtaining immigration

benefits." The judge stopped short, however, of finding that the

marriage was not "bona fide[ ]." The IJ ultimately denied

Tillery's VAWA application on the ground that her "testimony [was]

unreliable and non-credible with respect to her abuse," finding

that her "application [was] unworthy."

The BIA affirmed. In so doing, the Board declined to

"address the issue of whether [Tillery] presented credible evidence

that she was battered or subjected to extreme cruelty by [her

husband]." Instead, it read the IJ's decision as also finding that

Tillery had failed to present "sufficient evidence to demonstrate

that she and [her husband] did not enter their marriage 'for the

primary purpose of circumventing the immigration laws,'" and

affirmed on that basis.


In her petition for review, Tillery argues that the BIA

erred in holding that a good faith marriage must be shown before an

applicant may be eligible for VAWA special rule cancellation of

removal. See 8 U.S.C. § 1229b(b)(2)(A)(i)-(v). The government says

in response that the existence of the requirement is supported by

both the plain meaning of the statute and by its legislative

history. Our consideration of the issue, however, has been

hindered by the BIA's failure to articulate a sufficient -5-

explanation of its interpretation of the VAWA relief provision that

Tillery invoked. The government's rationale before us cannot serve

to fill the void that was left by the agency in this case. See

Harrington v. Chao, 280 F.3d 50 , 60 n.12 (1st Cir. 2002) (It is not

enough for the agency's lawyers to "talk a good line" on appellate

review; rather, it is necessary that the agency itself describe "in

its own decision what it is doing and why, in a way that will be

clear to the judicial reviewers."); see also Gallimore v. Attorney

Gen., 619 F.3d 216 , 226 (3d Cir. 2010) ("[W]e are not entitled to

sustain [the BIA's] decision on grounds that the Attorney General

articulates ex post."). We explain.

Typically, where the BIA adopts an IJ's ruling and

reasoning, as it purported to have done here, we review both

opinions to evaluate the merits of a petition presented to us. See

Costa v. Holder, 733 F.3d 13 , 16 (1st Cir. 2013). But, as we view

it, the BIA misread the basis for the IJ's denial as resting on a

putative good faith marriage eligibility requirement rather than on

the lack of credible evidence supporting the allegations of abuse.

We are thus unable to consider what the IJ saw as the crux of the

matter and treat this case as one in which the BIA rested its

decision on an alternative basis. See Reynoso v. Holder, 711 F.3d

199 , 205 (1st Cir. 2013); Halo v. Gonzales, 419 F.3d 15 , 19 (1st

Cir. 2005). Accordingly, it is the BIA's opinion that serves as


the final agency decision under review before us. See Vasquez v.

Holder, 635 F.3d 563 , 565 (1st Cir. 2011).

Although it enjoys broad authority to exercise independent

judgment and to rest on an alternative basis when denying a

petition, the BIA must clearly exposit its chosen path. See 8

C.F.R. § 1003.1(d)(1); Halo, 419 F.3d at 18-19; Gailius v. INS, 147

F.3d 34 , 44 (1st Cir. 1998); Chen v. INS, 87 F.3d 5 , 7 (1st Cir.

1996). This agency responsibility ensures, among other things,

that a reviewing court is able to provide intelligent review on

issues over which it has appellate jurisdiction. See 8 C.F.R. §

1003.1(d)(1); Dia v. Ashcroft, 353 F.3d 228 , 268 (3d Cir. 2003);

Albathani v. INS, 318 F.3d 365 , 377-78 (1st Cir. 2003); see also

SEC v. Chenery Corp., 332 U.S. 194 , 196-97 (1947) ("'We must know

what [an agency] decision means before the duty becomes ours to say

whether it is right or wrong.'"); Harrington, 280 F.3d at 61

(vacating and remanding "is a proper remedy when an agency fails to

explain its reasoning adequately.").

Here, the BIA's written decision does not adequately

explain its conclusion that the operative statute requires an alien

to prove a good faith marriage as an eligibility requirement for

VAWA special rule cancellation of removal. In providing the legal

framework, the BIA first identified the basic statutory

requirements for VAWA relief under 8 U.S.C. § 1229b(b)(2). Then,

in addition to these statutory prerequisites, the BIA stated -7-

cursorily that "the alien must also show that he or she did not

enter the marriage 'for the primary purpose of circumventing the

immigration laws.'" It did not purport to rely on § 1229b(b)(2)

for this ruling, nor did it provide any explanation or legal

reasoning for apparently construing the statute in that manner.

Instead, the BIA cited to a regulation, see 8 C.F.R. §

204.2(c)(1)(ix), and a BIA decision, see Matter of A-M-, 25 I&N.

Dec. 66 (BIA 2009). While citation alone may be sufficient in

certain instances to shed light on the agency's reasoning, neither

cited authority does so here.

The cited regulation, for example, specifically relates to

petitions for adjustment of status, 8 U.S.C. § 1154, including VAWA

self-petitions under § 1154(a)(1)(A)(iii)(I). See generally

Bolieiro v. Holder, 731 F.3d 32 , 40 (1st Cir. 2013) (noting

distinct procedural paths of VAWA self-petitions under

§ 1154(a)(1)(A) and VAWA special rule cancellation under

§ 1229b(b)(2)). Admittedly, an alien seeking adjustment of status

as a VAWA self-petitioner must prove that she entered into the

marriage in good faith. See 8 U.S.C. § 1154(a)(1)(A)(iii)(I). But

the BIA's rationale for equating the two VAWA avenues for relief,

without even referencing a provision under § 1229b(b)(2), is left

unexplained. Our task is to review the agency's legal

interpretation, not perform it in the first instance. See Negusie


v. Holder, 555 U.S. 511 , 516-17, 523 (2009); Chenery, 318 U.S. at

88; Ucelo-Gomez v. Gonzales, 464 F.3d 163 , 169-70 (2d Cir. 2006).

In addition, the single agency decision, cited by the Board

in a footnote, actually makes the agency's reasoning more obscure.

That decision, Matter of A-M-, does provide important background

on the enactment and overall meaning of the VAWA special

cancellation provision, but it does not hold that proof of a good

faith marriage is a required eligibility component. It does not

even address sham marriages at all. Rather, the passage cited by

the BIA relates to the agency's discretionary decision to deny

relief for VAWA special rule cancellation of removal where the past

abusive relationship had already ended and the former spouse no

longer posed a threat to the alien. See Matter of A-M-, 25 I & N.

Dec. at 78. As far as we can tell, this was not the purported

basis for the BIA's decision here.

The underlying administrative record does not illuminate

the BIA's rationale, either. The record shows only that, while

urging the IJ to adopt such a prerequisite for Tillery's VAWA

application, the government also candidly acknowledged that it had

no legal authority to offer the agency for that proposition. Nor

did the parties present the BIA with meaningful legal advocacy that

would allow us to glean the agency's reasoning for its ruling.

We acknowledge, of course, that nothing in § 1229b(b)(2)(A)

suggests turning a blind eye to the legitimacy of an alien's -9-

marital status. Indeed, the fourth eligibility component, which

looks to the alien's potential "inadmissible" or "deportable"

status, cross-references the marriage fraud provision that is

codified at 8 U.S.C. § 1227(a)(1)(G). See 8 U.S.C. §

1229b(b)(2)(A)(iv).1 Yet, the BIA's written decision gives no

indication that it relied on that or any other provision under §

1229b(b)(2) when requiring that the alien provide affirmative proof

of a good faith marriage when resisting removal. Speculating about

the reason that the BIA did not discuss the provision relating to

"marriage fraud" is not our role. It is within the agency's realm

to elucidate its rationale, and the BIA's failure to do so hinders

meaningful judicial review in this case.2

1 The fourth eligibility component for VAWA relief under § 1229b(b)(2)(A) lists various statutory disqualifiers, some of which may be waived by the agency, see 8 U.S.C. § 1229b(b)(2)(A)(iv), and specifically may be waived as to VAWA self-petitioners, see generally 8 U.S.C. § 1227(a)(1)(H). 2 Under the marriage fraud provision, an alien shall be considered deportable when, among other things, "it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien's marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien's admission as an immigrant." 8 U.S.C. § 1227(a)(1)(G) (emphasis added). The relationship between sham marriages and eligibility for relief under the VAWA special rule cancellation of removal does not appear to have been fully explored in the caselaw. See, e.g., Hamilton v. Holder, 680 F.3d 1024 , 1026-27 (8th Cir. 2012) (while noting that the BIA required affirmative proof that a "marriage was entered into in good faith" for § 1229b(b)(2) VAWA relief, resolving the case on different grounds).


We do not mean to suggest that the BIA's legal conclusion

is necessarily erroneous or unsupportable in the law. We conclude

only that the prudent course at this juncture is to vacate and

remand. Further agency exposition will equip us to appropriately

evaluate the decisional principles that potentially apply. See

Negusie, 555 U.S. at 516-17, 523; Soto-Hernandez v. Holder, 729

F.3d 1 , 3 (1st Cir. 2013). Nor do we restrict the scope of the

remand. The agency remains free, of course, to decide this case on

some other or different ground. Without limiting that generality,

it may, for example, elect to address the credibility of Tillery's

domestic abuse allegations or other matters pertinent to the VAWA

relief that she requests.

Accordingly, we vacate the denial of Tillery's application

for VAWA special-rule cancellation of removal and remand for

further proceedings consistent with this opinion.

So ordered.


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