United States Court of Appeals

For the First Circuit

No. 05-1971

DANIELA COELHO; JOAO NETO,

Petitioners,

v.

ALBERTO R. GONZALES, Attorney General

Respondent.

ON PETITION FOR REVIEW OF A DECISION

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Lynch, and Lipez,

Circuit Judges.

Christopher W. Drinan, with whom Law Office of John K. Dvorak,

P.C. was on brief for petitioners.

Janet A. Bradley, Trial Attorney, Civil Division, U.S.

Department of Justice, with whom Linda S. Wernery, Assistant

Director, Civil Division, U.S. Department of Justice, and Peter D.

Keisler, Assistant Attorney General, were on brief for respondent.

July 6, 2006
 "Adjustment of Status" is defined in 8 U.S.C. § 1255 as 1

follows:

[t]he status of an alien who was inspected and admitted

or paroled into the United States . . . may be adjusted

by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien

lawfully admitted for permanent residence if (1) the

alien makes an application for such adjustment, (2) the

alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence,

and (3) an immigrant visa is immediately available to him

at the time his application is filed.

The Department of Homeland Security defines "adjustment of status"

in layman's terms as follows: "Adjustment to Immigrant Status -

Procedure allowing certain aliens already in the United States to

apply for immigrant status. Aliens admitted to the United States

in a nonimmigrant, refugee, or parolee category may have their

status changed to that of lawful permanent resident if they are

eligible to receive an immigrant visa and one is immediately

available." U.S. Citizenship and Immigration Services, Glossary &

Acronyms, http://www.uscis.gov/graphics/glossary.htm (last visited

June 19, 2006).

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LIPEZ, Circuit Judge. Daniela Coelho and Joao Neto,

natives and citizens of Brazil, seek review of the Board of

Immigration Appeals ("BIA") decision that Neto was ineligible for

adjustment of status. The Immigration Judge ("IJ") had found that

Neto was ineligible for adjustment of status because he had

submitted an earlier application for adjustment of status based on

a fraudulent marriage, in violation of the Immigration and

Nationality Act ("INA") § 204(c), 8 U.S.C. § 1154(c). Although it

adopted the IJ's factual findings, the BIA relied on different

reasoning to reach the conclusion that Neto was ineligible for

adjustment of status. Specifically, the BIA concluded that he was 1
 "Admission", "admissible", "admissibility", "inadmissible", 2

and "inadmissibility" are used to refer to an individual's ability

to enter the United States lawfully. See generally, U.S.

Citizenship and Immigration Services, Glossary & Acronyms,

http://www.uscis.gov/graphics/glossary.htm (last visited June 19,

2006). However, these terms and concepts are also applied to

individuals already physically present in the United States, such

as the petitioners here.

 See supra note 1. A requirement for adjustment of status 3

under 8 U.S.C. § 1255(a) is that an alien be "admissible to the

United States for permanent residence."

 On March 1, 2003, the INS ceased to exist as an agency 4

within the Department of Justice. Its enforcement functions were

transferred to the Department of Homeland Security, pursuant to

§§ 441 and 471 of the Homeland Security Act of 2002, Pub. L. No.

107-296, 116 Stat. 2135.

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inadmissible because his earlier application constituted a 2

fraudulent attempt to gain an immigration benefit, in violation of

INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). Neto's

inadmissibility made him ineligible for adjustment of status. The 3

BIA also found that Neto was ineligible for a waiver of this

inadmissibility under INA § 212(i), 8 U.S.C. § 1182(i), because he

did not have a qualifying relative. Agreeing with the reasoning of

the BIA, we deny the petition for review.

I.

On or about April 7, 2000, the then Immigration and

Naturalization Service ("INS") commenced removal proceedings 4

against Neto by way of a Notice to Appear. The notice charged two

separate bases of removal: (1) as an immigrant who at the time of
 8 U.S.C. § 1227(a)(1)(A), entitled "Inadmissible aliens", 5

states: "[a]ny alien who at the time of entry or adjustment of

status was within one or more of the classes of aliens inadmissible

by the law existing at such time is deportable." An alien who came

within the ambit of INA § 212(a)(6)(C)(i) would be within one of

the "classes of aliens inadmissible by the [existing] law", which

is why, for removability charges, the Notice to Appear listed both

statutory provisions.

 Coelho, Neto's wife, applied for adjustment of status 6

derivatively through Neto's application, and her case was

consolidated with his case.

 To enhance understanding of the somewhat convoluted 7

procedural history of this case, we note that there are two

discrete applications for adjustment of status discussed in this

opinion. The first application for adjustment of status occurred

in 1995 when Neto, or someone on his behalf, filed an I-130

"Petition for Alien Relative" and an accompanying I-485

"Application to Register Permanent Residence or Adjust Status"

(hereinafter, the "I-130/I-485 petition"). The I-130/I-485

petition asserted that Neto was eligible for adjustment of status

because he was married to a United States citizen. (An individual

applying for adjustment of status typically needs a "sponsor", be

it a relative, such as a spouse, or an employer.)

The second application for adjustment of status was filed in

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adjustment of status was inadmissible by fraud or by willfully

misrepresenting a material fact, pursuant to INA § 237(a)(1)(A), 8

U.S.C. § 1227(a)(1)(A), and INA § 212(a)(6)(C)(i), 8 U.S.C. §

1182(a)(6)(C)(i); and (2) for remaining in the United States 5

longer than permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B). Petitioners, through counsel, appeared before an 6

IJ and conceded removability under INA § 237(a)(1)(B). While these

removal proceedings were pending, Neto renewed an earlier

application for adjustment of status in order to avoid removal,

and, in the alternative, applied for voluntary departure.7
1998 when Bertucci's, a restaurant chain and Neto's employer, filed

on his behalf an I-140 "Immigrant Petition for Alien Worker". The

I-140 petition asserted that Neto was eligible for adjustment of

status given his employment at Bertucci's. As before, Neto filed

an I-485 petition to accompany the I-140 petition. It is this

second I-485 petition for adjustment of status that Neto renews

during the removal proceedings (hereinafter, the "I-140/I-485

petition").

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A. Testimony and Proceedings before the Immigration Judge

Petitioners' removal proceedings spanned a number of

hearings, before a number of different IJs, over a period of nearly

four years. Early in the proceedings, the government submitted,

and the IJ admitted into evidence, a letter from the District

Director for INS, dated March 21, 2000, entitled "Denial of

Application for Permanent Residence". The letter noted that

Bertucci's had filed an I-140 "Immigrant Petition for Alien Worker"

in late February 1998 on Neto's behalf. This I-140 petition was

approved in early March 1998. To complete the adjustment of status

process, Neto filed an I-485 "Application to Register Permanent

Residence or Adjust Status" in May 1998. As a part of that

process, the INS interviewed Neto on December 13, 1999. The letter

indicated that because of facts gleaned from this 1999 interview --

specifically, the events surrounding the earlier application for

adjustment of status that Neto had submitted in 1995 -- the I-140

petition was being revoked, and the I-485 petition was being

denied. 
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In 1995, Neto (or someone on his behalf) had submitted an

I-130/I-485 petition ("Petition for Alien Relative") to adjust his

status on the basis of marriage to a United States citizen, one

Debbie Russo. This application for adjustment of status had been

denied in February 1995, pursuant to INA § 212(a)(6)(C), the

provision establishing inadmissibility by reason of fraud, because

the marriage was apparently fraudulent. Once the INS realized that

this I-130/I-485 petition had earlier been denied, the INS revoked

the I-140 petition it had earlier approved, and denied the pending

I-485 petition for adjustment of status.

In a hearing on May 1, 2002, the government asserted that

Neto could not now challenge the INS's denial of his 1995 I-130/I485 petition, the grounds for his removal pursuant to INA

§§ 237(a)(1)(A) and 212(a)(6)(C)(i). However, the IJ learned

during this hearing that the INS had never informed Neto of the

grounds for denying the I-130/I-485 petition, i.e., the alleged

1995 marriage fraud, until the denial of his 1998 I-140/I-485

petition in the District Director's March 21, 2000 letter. The IJ

decided to allow Neto to respond to the grounds for the I-130/I-485

petition denial because of this oversight. In "that way . . . we

have the whole fraud thing flushed out if this case ultimately goes

up to the Board [BIA] on the whole issue of fraud." Additionally,

in regard to Neto's renewed application for adjustment of status,

the IJ wanted to take testimony from Neto to decide whether INA
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§ 204(c), the "marriage fraud" statute barring eligibility for

adjustment of status, would apply.

Neto provided his rebuttal testimony in an evidentiary

hearing before the IJ on January 13, 2004. Neto averred that he

arrived in the United States from Brazil in April 1992 as a B-2

visitor ("Temporary Visitor for Pleasure"). Coelho came to the

United States from Brazil in January 1993 with their two children,

also as B-2 visitors. Neto married Coelho in November 1995. Neto

stated that shortly after arriving in the United States, he

completed a form and obtained a Social Security number, even though

as a B-2 visitor he was ineligible to receive a Social Security

number. Neto also testified that, using this number, he secured

employment at Bertucci's, even though he knew he was not eligible

to work in the United States. Neto stated that except for a brief

period of time, he has remained employed by Bertucci's during his

residence in the United States. 

In order to rebut the March 21, 2000 letter describing

his earlier fraud, Neto testified that he was informed in 1995 by

a coworker that an "amnesty" program had become available, and that

through this program that coworker had been able to secure a work

permit from the INS. The coworker allegedly gave Neto a telephone

number of a person he described to Neto as an attorney, known only

to Neto as "Bianca". Neto claimed that he contacted "Bianca", who

informed him that she would fill out the necessary INS forms and
 Section 204(c) provides, in relevant part, that: 8

no petition [for adjustment of status] shall be approved

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obtain a work permit for him pursuant to the purported amnesty

program for $3,000 cash. Shortly thereafter, according to Neto, he

met with "Bianca", paid her the fee, and signed several blank INS

forms. Neto claimed that he was tricked by "Bianca", that the

money had been stolen from him, and that he did not know that

"Bianca" had involved him in any marriage fraud.

B. The decisions of the Immigration Judge and the BIA

On January 13, 2004, the IJ entered an oral decision

finding Petitioners removable as charged -- for inadmissibility by

fraud under INA §§ 237(a)(1)(A) and 212(a)(6)(C)(i) for Neto's

actions in 1995, and for overstaying in the United States under INA

§ 237(a)(1)(B). The IJ also denied Petitioners' renewed

application for adjustment of status (the I-140/I-485 petition).

Rather than addressing the possibility of waiver of inadmissibility

-- and, therefore, "indirectly" denying Neto's renewed petition for

adjustment of status -- the IJ decided to address that petition

directly. Rejecting Neto's testimony that he had no knowledge that

he was involved in a fraudulent scheme with the assistance of

"Bianca", the IJ concluded that Neto had "sought to be accorded

status as the spouse of a citizen of the United States fraudulently

for purposes of evading the Immigration laws" in violation of INA

§ 204(c), 8 U.S.C. § 1154(c). That violation precluded any 8
if (1) the alien has previously been accorded, or has

sought to be accorded an immediate relative or preference

status as the spouse of a citizen of the United States or

the spouse of an alien lawfully admitted for permanent

residence, by reason of a marriage determined by the

Attorney General to have been entered into for the

purpose of evading the immigration laws, or (2) the

Attorney General has determined that the alien has

attempted or conspired to enter into a marriage for the

purpose of evading the immigration laws.

 Section 204(c) directly nullifies any petition for 9

adjustment of status made by an individual who has committed

marriage fraud. This ineligibility cannot be waived, unlike

certain types of inadmissibility. 

 Section 212(a)(6)(C)(i) states: 10

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possibility of relief through the renewed I-140/I-485 petition for

adjustment of status.9

Petitioners timely appealed the IJ's decision to the BIA

on Neto's I-140/I-485 petition only. Petitioners did not appeal

the IJ's ruling on either ground of removability. On June 2, 2005,

the BIA dismissed Petitioners' appeal. Rather than finding him

directly ineligible for adjustment of status under § 204(c) -- the

"marriage fraud" statute relied on by the IJ -- the BIA undertook

an alternate analysis to address Neto's petition for adjustment of

status. Under 8 U.S.C. § 1255, an alien must be admissible to be

granted adjustment of status. See supra note 1. The BIA upheld

the IJ's conclusion, underlying the IJ's § 237(a)(1)(A)

removability decision, that Neto was inadmissible under INA

§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) because his actions 10
Any alien who, by fraud or willfully misrepresenting a

material fact, seeks to procure (or has sought to procure

or has procured) a visa, other documentation, or

admission into the United States or other benefit

provided under this chapter is inadmissible.

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surrounding the I-130/I-485 petition filed in 1995 constituted

involvement in a fraudulent scheme to obtain an immigration

benefit. The BIA then addressed whether Neto was eligible for a

waiver of his § 212(a)(6)(C)(i) inadmissibility, without which Neto

would be statutorily precluded from petitioning for adjustment of

status.

Section 212(i), 8 U.S.C. § 1182(i), provides for waivers

of inadmissibility based on INA § 212(a)(6)(C)(i). Section 212(i)

states, in relevant part, that the application of § 212(a)(6)(C)(i)

may be waived:

in the case of an immigrant who is the spouse, son, or

daughter of a United States citizen or of an alien

lawfully admitted for permanent residence if it is

established to the satisfaction of the Attorney General

that the refusal of admission to the United States of

such immigrant alien would result in extreme hardship to

the citizen or lawfully resident spouse or parent of such

an alien or . . . the alien demonstrates extreme hardship

to the alien or the alien's United States citizen, lawful

permanent resident, or qualified alien parent or child.

Because Neto lacked a qualifying relative, he was not eligible for

a waiver of this ground of inadmissibility. As a result, the BIA

determined that he was ineligible for adjustment of status because

of his inadmissibility, and the appeal of the IJ's denial of his I140/I-485 petition was denied. The BIA also noted that it would
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deny adjustment of status as a matter of discretion even if Neto

were eligible.

II.

"When the BIA summarily affirms, this court reviews the

IJ's decision as if it were the decision of the BIA." Harutyunyan

v. Gonzales, 421 F.3d 64, 67 (1st Cir. 2006). Here, the BIA

summarily adopted the IJ's factual findings, but reached a

different legal conclusion based on those findings. Therefore, we

review the IJ's factual findings, as if they were the BIA's, for

substantial evidence. Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120,

123 (1st Cir. 2005). To the extent there are issues of law, we

decide those de novo, Tobeth-Tangang v. Gonzales, 440 F.3d 537,

539 (1st Cir. 2006), but to the extent the BIA's decision on

alternate grounds rests on the evidence we apply the same

substantial evidence standard of review.

While § 204(c) directly precludes eligibility for

adjustment of status for the specific act of taking part in a

fraudulent marriage, or attempting or conspiring to do so,

§ 212(a)(6)(C)(i) denies admissibility -- "indirectly" leading to

a denial of adjustment of status -- for taking part in any

fraudulent scheme to obtain an immigration benefit. Although

§ 212(a)(6)(C)(i) is more general than § 204(c), it permits waivers
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of the inadmissibility it imposes if certain qualifications are

met.

Petitioners focus their appeal on INA § 204(c), the

"marriage fraud" statute, on which the IJ based his decision

denying Petitioners' application for adjustment of status.

Petitioners fail to address in any way Neto's inadmissibility under

INA § 212(a)(6)(C)(i) as it relates to his petition for adjustment

of status, or the denial of a waiver of his inadmissibility under

INA § 212(i). Based on this inadmissibility under

§ 212(a)(6)(C)(i) and the lack of a § 212(i) waiver, the BIA

affirmed the IJ's denial of adjustment of status.

Petitioners do not attempt to explain why the BIA erred

in finding Neto inadmissible under § 212(a)(6)(C)(i) or in

concluding that he could not obtain a waiver of inadmissibility

under § 212(i). The government asserts that, having failed to

brief any argument on § 212(a)(6)(C)(i) or the § 212(i) waiver

issue, Petitioners have waived any argument on these dispositive

issues. We agree. However, to avoid any suggestion that the

outcome of this appeal depends solely on omitted arguments, we

address briefly the BIA's ruling pursuant to § 212(a)(6)(C)(i) and

§ 212(i), as the government did in its brief.

Based on the factual findings it adopted from the IJ, the

BIA concluded that Neto had been involved in a fraudulent scheme to

obtain an immigration benefit in 1995 (the I-130/I-485 petition),
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rendering him inadmissible pursuant to § 212(a)(6)(C)(i). This

conclusion was supported by substantial evidence. As a result,

Neto had to apply for a waiver of this type of inadmissibility

under INA § 212(i) in conjunction with his renewed I-140/I-485

petition. To be eligible for § 212(i)'s waiver of inadmissibility,

an applicant must demonstrate that he or she "is the spouse, son,

or daughter of a United States citizen or of an alien lawfully

admitted for permanent status." The BIA concluded correctly that

Neto was not eligible for the § 212(i) waiver because he was not

able to show that he had a qualifying relative. Therefore, he was

ineligible for adjustment of status, and the BIA properly dismissed

his appeal.

The petition for review is denied.