United States Court of Appeals For the First Circuit
SONIA PETERS TILLERY,
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*
FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
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.