United States Court of Appeals 

For the First Circuit 

No. 14-1690 

JULIA MERCEDES CABRERA, 

Petitioner, 

v. 

LORETTA E. LYNCH,* ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

Before 

Howard, Chief Judge, 

Selya and Thompson, Circuit Judges. 

 Livia Lungulescu and Romanovsky Law Offices on brief for 

petitioner. 

 Benjamin C. Mizer, Acting Assistant Attorney General, Civil 

Division, United States Department of Justice, Ernesto H. Molina, 

Jr., Assistant Director, Office of Immigration Litigation, and 

Joanna L. Watson, Trial Attorney, Office of Immigration 

Litigation, on brief for respondent. 

November 9, 2015 

_____________ 

* 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.
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SELYA, Circuit Judge. The petitioner, Julia Mercedes 

Cabrera, is a native and citizen of the Dominican Republic. She 

seeks judicial review of a final order of the Board of Immigration 

Appeals (BIA) upholding a decision of an immigration judge (IJ), 

which denied her both an I-751 waiver and cancellation of removal. 

After careful consideration, we deny her petition. 

I. BACKGROUND

We briefly rehearse the facts and travel of the case. 

The petitioner entered the United States in January of 1991 and 

married a U.S. citizen later that same year. Through that 

marriage, she was able to acquire status as a conditional lawful 

permanent resident on June 25, 1993. See 8 U.S.C. § 1186a(a)(1), 

(h)(1). The petitioner and her spouse subsequently filed an I751 joint petition (the joint petition) seeking to remove the 

conditional nature of the petitioner's residency status. See id. 

§ 1186a(c)(1). 

Following an interview in early 1996, the Immigration 

and Naturalization Service notified the petitioner of its intent 

to deny the joint petition based on a finding of marriage fraud. 

The joint petition was formally denied on August 8, 1997, resulting 

in the termination of the petitioner's status as a conditional 

lawful permanent resident. The petitioner never sought review of 

this adverse determination. Shortly thereafter, the petitioner 
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and her spouse became embroiled in divorce proceedings and a final 

divorce decree was entered on June 18, 1999. 

In October of 2000, federal authorities placed the 

petitioner in removal proceedings. The next year (while still in 

removal proceedings), the petitioner filed another I-751 petition. 

This petition (the waiver petition) sought a waiver of the joint 

petition requirements, maintaining that the petitioner had entered 

into her marriage in good faith. See id. § 1186a(c)(4). 

The waiver petition proved unavailing: United States 

Citizenship and Immigration Services (USCIS) denied it on October 

5, 2006. In doing so, USCIS did not consider the merits of the 

waiver petition but, rather, relied on the previous finding of 

marriage fraud. USCIS explained that the marriage fraud finding 

rendered the petitioner ineligible to seek a waiver of the joint 

filing requirement. 

The removal proceedings were resumed and, in April of 

2012, the petitioner appeared for a merits hearing. The IJ asked 

the petitioner whether she was seeking review of the denial of her 

joint petition or the denial of her waiver petition. The 

petitioner confirmed that she was seeking review only of the denial 

of the waiver petition. 

At the end of the hearing, the IJ upheld the denial of 

the waiver petition. She found that the petitioner had not carried 

her burden of proving that she had entered into her marriage in 
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good faith. Relatedly, the IJ found that the petitioner was 

ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) 

and, thus, pretermitted her application. 

The petitioner timely appealed to the BIA, which 

affirmed the IJ's decision and dismissed the appeal. This timely 

petition for judicial review followed. 

II. ANALYSIS

Our analysis necessarily begins with the standard of 

review. In immigration cases, judicial oversight ordinarily 

focuses on the final order of the BIA. See Moreno v. Holder, 749 

F.3d 40, 43 (1st Cir. 2014). "But where, as here, the BIA accepts 

the IJ's findings and reasoning yet adds its own gloss, we review 

the two decisions as a unit." Id. (quoting Xian Tong Dong v. 

Holder, 696 F.3d 121, 123 (1st Cir. 2012)). Claims of legal error 

engender de novo review, with some deference to the agency's 

expertise in interpreting both the statutes that govern its 

operations and its own implementing regulations. See Jianli Chen 

v. Holder, 703 F.3d 17, 21 (1st Cir. 2012); see also Chevron 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-

44 (1984). 

We turn next to the relevant legal framework under the 

Immigration and Nationality Act (the Act). Under the Act, an alien 

married to a U.S. citizen for less than 2 years may seek status as 

a conditional lawful permanent resident. See 8 U.S.C. 
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§ 1186a(a)(1), (h)(1). If conditional residency status is granted, 

the alien must apply for removal of her conditional status within 

the 90-day window preceding the second anniversary of the date on 

which that status was acquired. See id. § 1186a(c)(1), (d)(2)(A); 

see also Reynoso v. Holder, 711 F.3d 199, 202 n.4 (1st Cir. 2013). 

The application process for the removal of conditional 

status entails two steps: first, the alien and the citizen spouse 

must jointly submit a Form I-751 petition attesting to the validity 

and bona fides of the marriage; second, both spouses must appear 

for an interview conducted by a Department of Homeland Security 

(DHS) representative. See 8 U.S.C. § 1186a(c)(1), (d)(3). If the 

joint petition is unsuccessful, then the alien's status as a 

conditional lawful permanent resident terminates, and DHS will 

proceed to initiate removal proceedings. See 8 U.S.C. 

§ 1186a(c)(3)(C); 8 C.F.R. § 216.4(d)(2); see also Reynoso, 711 

F.3d at 202 n.4. 

An alien whose joint petition is denied may seek review 

of the adverse determination in her subsequent removal 

proceedings. See 8 C.F.R. § 216.4(d)(2). In that event, the 

government has the burden of proving by a preponderance of the 

evidence that the material facts alleged in the joint petition are 

false. See id. 

There is another path that may be open to an alien who 

cannot satisfy the requirements for the granting of an I-751 joint 
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petition. Such an alien may file a petition for a waiver of the 

joint filing requirements. See 8 U.S.C. § 1186a(c)(4); 8 C.F.R. 

§ 1216.5(a)(1). The alien may qualify for this sort of 

discretionary waiver by demonstrating, among other things, that 

she entered into the qualifying marriage "in good faith"; that 

"the qualifying marriage has been terminated (other than through 

the death of the spouse)"; and that she "was not at fault in 

failing to meet the requirements [for a joint petition]." 8 U.S.C. 

§ 1186a(c)(4)(B). Under this framework, the burden of proof rests 

with the alien to show that she entered into the qualifying 

marriage in good faith. See id. § 1186a(c)(4); McKenzie-Francisco 

v. Holder, 662 F.3d 584, 586-87 (1st Cir. 2011). An alien whose 

waiver petition is denied may seek review of that decision in her 

removal proceedings. See 8 C.F.R. § 1216.5(f). 

Against this backdrop, we examine the petitioner's twin 

claims of error. First, she asserts that the IJ erroneously 

reviewed the waiver petition instead of the joint petition, leading 

to an improper shift in the burden of proof. Second, she asserts 

that the BIA blundered in determining that she was statutorily 

ineligible for cancellation of removal. We address these claims 

of error sequentially. 

A.

The petitioner's first contention need not detain us. 

At the removal hearing, the IJ made a specific point of clarifying 
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which petition was at issue. The petitioner, through her attorney, 

assured the IJ in no uncertain terms that she was seeking review 

only of the waiver petition, not of the joint petition. 

That ends this aspect of the matter. It is axiomatic 

that a litigant is bound by her strategic choices during the course 

of a legal proceeding. See Genereux v. Raytheon Co., 754 F.3d 51, 

59 (1st Cir. 2014). If a particular strategy later proves 

unavailing, the litigant cannot forsake her earlier tactical 

decision at will and "attempt to change horses midstream in hopes 

of finding a swifter steed." Id. This construct has particular 

force where, as here, a litigant or her attorney makes an express 

representation to both the trial judge and the opposing party. 

See id. at 58-59. 

This case aptly illustrates the point. Through her 

counsel, the petitioner explicitly and emphatically informed the 

IJ of her decision to seek review only of the waiver petition. 

Both judges and opposing parties must be able to rely on such 

representations, and nothing in this record suggests any valid 

reason why the petitioner should not be firmly bound by her own 

strategic choice.1 

 1 Because the IJ did not err in reviewing only the denial of 

the waiver petition, there was no error in her assigning the burden 

of proof to the petitioner. When an alien seeks judicial review 

of a waiver petition, the alien must carry the devoir of persuasion 

and show that she entered into her marriage in good faith. See 

McKenzie-Francisco, 662 F.3d at 586-87. 
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B. 

This brings us to the petitioner's contention that the 

BIA erred in determining that she was ineligible to apply for 

cancellation of removal under section 1229b(a). With respect to 

this contention, the petitioner urges us to review the decision of 

the IJ directly because the BIA failed to offer any independent 

reasoning for its views on this point. 

This exhortation lacks force. We treat the conclusions 

of an IJ as those of the BIA only when the BIA affirms the IJ 

without opinion. See, e.g., Keo v. Ashcroft, 341 F.3d 57, 59-60 

(1st Cir. 2003); Herbert v. Ashcroft, 325 F.3d 68, 70-71 (1st Cir. 

2003). This is not such a case: here, the BIA added its own gloss 

to the IJ's findings and reasoning. Thus, we train the lens of 

our inquiry on the combination of the BIA's decision and the IJ's 

decision. See Moreno, 749 F.3d at 43; Xian Tong Dong, 696 F.3d at 

123. 

An alien who holds lawful permanent resident status may 

obtain cancellation of removal only if she: (i) "has been 

. . . lawfully admitted for permanent residence" for at least five 

years; (ii) "has resided in the United States continuously for 

seven years" after her admission in any status; and (iii) "has not 

been convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(1)-

(3). Even if an alien satisfies these three prerequisites, the 

Attorney General's decision to grant such relief is discretionary 
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and "amounts to 'an act of grace.'" Sad v. INS, 246 F.3d 811, 819 

(6th Cir. 2001) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 

(1996)). 

In the case at hand, the petitioner falls well short of 

the required showing. She was, at most, a conditional lawful 

permanent resident from June 1993 through August 1997 — a period 

of less than five years. This failure to satisfy the five-year 

prerequisite is, in itself, enough to find her ineligible for 

cancellation of removal under section 1229b(a). 

In all events, the petitioner lost even this conditional 

status when USCIS formally denied the joint petition. See 8 U.S.C. 

§ 1186a(c)(3)(C); 8 C.F.R. § 216.4(d)(2). Nor did the filing of 

the waiver petition serve to restore her residency status. See 

Severino v. Mukasey, 549 F.3d 79, 83 (2d Cir. 2008). Because the 

petitioner had no status as a permanent resident, conditional or 

otherwise, when she filed the waiver petition, the BIA correctly 

determined that she was categorically ineligible to apply for 

cancellation of removal under 8 U.S.C. § 1229b(a). See id. at 82-

83 (affirming alien's ineligibility for cancellation of removal 

under 8 U.S.C. § 1229b(a) because his conditional lawful permanent 

residency status had been terminated); see also Padilla-Romero v. 

Holder, 611 F.3d 1011, 1013 (9th Cir. 2010) ("[T]he text requires 

that an alien applying for cancellation of removal under § 1229b(a) 

have current [lawful permanent residence] status."). 
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In an effort to undermine this reasoning, the petitioner 

picks out scraps of language from a trio of reported cases. This 

scavenger hunt proves unproductive. 

To begin, the petitioner cites In re Ayala-Arevalo, 22 

I&N Dec. 398 (BIA 1998), for the proposition that an alien "who 

does not yet have a final order of deportation, still enjoys the 

status of an alien who has been 'lawfully admitted for permanent 

residence.'" Id. at 402. The petitioner's reliance on AyalaArevalo is misplaced. Wresting the quoted language from its 

contextual moorings and giving it sweeping effect — as the 

petitioner suggests — would ignore entire sections of the Act and 

a host of implementing regulations that specify the precise 

circumstances in which an alien's status as a conditional lawful 

permanent resident terminates. See, e.g., 8 U.S.C. 

§ 1186a(c)(3)(C); 8 C.F.R. §§ 216.4(d)(2), 216.5(f). We cannot — 

and will not — dispense in so cavalier a manner with the combined 

directives of Congress and DHS. 

Ayala-Arevalo is inapposite for other reasons as well. 

The alien there enjoyed status as a lawful permanent resident, not 

as a conditional lawful permanent resident. See Ayala-Arevalo, 22 

I&N Dec. at 399. While the petitioner argues that conditional 

permanent residency is equivalent in all respects to permanent 

residency, that argument is specious. When Congress wanted to 

equate the two residency statuses, it knew exactly how to write 
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such an equivalency into the Act. See, e.g., 8 U.S.C. § 1186a(e) 

(providing that, for purposes of naturalization, the period of 

conditional lawful permanent residence should be treated as part 

of the period of "lawful permanent residence"). Otherwise, 

Congress has refrained from conflating conditional permanent 

residency with ordinary permanent residency. 

The petitioner's embrace of the BIA's decision in Matter 

of Paek, 26 I&N Dec. 403 (BIA 2014), does nothing to advance her 

cause. That decision merely notes that (except to the extent the 

Act says otherwise) conditional lawful permanent residents have 

the same privileges as lawful permanent residents, "such status 

not having changed." Id. at 407. Here, however, the petitioner's 

status underwent a material change: her conditional residency was 

terminated in 1997. 

So, too, the petitioner finds no succor in Gallimore v. 

Attorney General of the United States, 619 F.3d 216 (3d Cir. 2010). 

The petitioner quotes the Gallimore court's pronouncement that 

"[t]he [Act] . . . equates conditional [lawful permanent residents] 

with 'full-fledged' [lawful permanent residents]." Id. at 229. 

But the court hastened to except those situations in which "§ 1186a 

[of the Act] prescribes additional obligations." Id. In this 

instance, section 1186a pertains; and the petitioner cannot 

satisfy the additional obligations of section 1186a because her 
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application for removal of her conditional status was denied. See 

8 U.S.C. § 1186a(c)(3)(C). 

To say more would be pointless. We hold, without serious 

question, that the BIA did not err in declaring the petitioner 

categorically ineligible for cancellation of removal under 8 

U.S.C. § 1229b(a).2

III. CONCLUSION

We need go no further. For the reasons elucidated above, 

we deny the petition for judicial review. 

So Ordered.

 2 An alien may, of course, apply for cancellation of removal 

as a non-permanent resident under 8 U.S.C. § 1229b(b). See, e.g., 

Reynoso, 711 F.3d at 202-03, 209. The petitioner originally asked 

for this relief in the alternative, but the IJ later deemed that 

request abandoned. Since the petitioner did not appeal that ruling 

to the BIA, we lack jurisdiction to pursue the matter. See Molina 

De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007).