Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 13-1246

OMAR ANTONIO DUQUE-CÁCERES,

Petitioner,

v.

ERIC H. HOLDER, JR.,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Torruella and Howard, Circuit Judges.

Ramón M. González, on brief for petitioner.

Wendy Benner-León, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, Stuart F.

Delery, Assistant Attorney General, Civil Division, and Anthony W.

Norwood, Senior Litigation Counsel, Office of Immigration

Litigation, on brief for respondent.

July 29, 2014
TORRUELLA, Circuit Judge. Petitioner Omar Antonio DuqueCáceres ("Duque"), a native and citizen of Venezuela, seeks review

of a final order of deportation issued by the Board of Immigration

Appeals ("BIA"). The BIA dismissed his appeal of the Immigration

Judge's ("IJ") decision denying Duque’s application for a waiver of

the joint filing requirements to remove the conditions of his

residency ("I-751 waiver"). 

Because the administrative record provides substantial support

for the findings of both the IJ and the BIA, and does not compel a

contrary conclusion, we deny Duque's petition for review.

I. Background

A. Duque's marriage and status adjustment

On May 2, 2002, Duque, a native and citizen of Venezuela,

was admitted to the United States as a visitor. On December 10,

2004, Duque married Gladys López ("Gladys"), a U.S. citizen. 

Following the marriage, Duque's status was adjusted to lawful

permanent resident on a conditional basis.1

1 Pursuant to § 216(a)(1) of the Immigration and Naturalization

Act ("INA"), 8 U.S.C. §§ 1186a(a)(1), any alien who obtains lawfulpermanent-resident status based on marriage to a United States

citizen, obtains said status on a conditional basis. In order to

remove the conditional basis, the married couple must file a joint

petition to remove the conditions -- i.e., an I-751 petition -- and

appear for an interview with the Department of Homeland Security

("DHS") to answer questions and provide information showing that

the marriage is bona fide. 8 U.S.C. §§ 1186a(c)(1), (d); 8 C.F.R.

§§ 216.4. 

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B. Denial of Duque's joint I-751 petition

On January 11, 2008, Duque and Gladys submitted a joint

I-751 petition to the United States Citizenship and Immigration

Services (the "CIS"), seeking to remove the conditional basis of

Duque's lawful permanent-resident status. On April 30, 2009 they

appeared for an interview with a CIS officer. During Gladys's

individual interview, she withdrew from the joint petition and

claimed that: (1) she and Duque had lived in different residences

since his arrival in Puerto Rico; (2) she and Duque had never lived

together as husband and wife; and (3) she had married Duque because

she wished to help him, but also because he offered to pay her

$2,000 in exchange for her assistance in securing lawful residency.

Unsurprisingly, the CIS denied the joint petition and

terminated Duque's permanent-resident status. In its decision, the

CIS stated that Gladys admitted that the joint petition contained

false statements, and that the credit cards presented to the CIS

officer by Duque to evince joint accounts -- purportedly held by

both Duque and Gladys -- were actually held in Duque's sole

possession and were only provided to Gladys the week of the

interview. The decision also mentioned that the CIS interviewer

offered Duque the opportunity to rebut Gladys's statements, and he

initially claimed that her statements were false. However, when

asked later if he wanted to change anything in his statement, Duque

admitted that he and Gladys never lived together as husband and

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wife, that she married him as a favor, and that he would provide

Gladys with monetary aid when necessary.

C. Removal proceedings

 On May 5, 2009, the Department of Homeland Security

("DHS") commenced removal proceedings against Duque. Appearing

with counsel before the IJ, Duque admitted all of the allegations

against him, save for the allegation that his marriage was

fraudulent, and he challenged the charge of removability. At the

hearing, Duque indicated that he was seeking review of the CIS's

termination of his permanent-resident status, that he had divorced

Gladys on June 5, 2009, and that he had applied for an I-751

waiver.2 In response, the IJ continued the proceedings until the

CIS ruled on Duque's I-751 waiver petition. The IJ could then

review the CIS's decision on the I-751 waiver, if necessary.

D. Denial of the I-751 waiver

In response to Duque's I-751 waiver petition, the CIS

sent Duque a notice instructing him to submit evidence or

supporting documents in order to establish the legitimacy of his

marriage to Gladys. Duque made no submissions in response to the

2 An alien is permitted to seek a waiver of the joint filing and

interview requirements to remove the conditional basis of his

resident status if the marriage ended in divorce. INA

§ 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B). In order to qualify for

this waiver, the alien must show that: (1) he entered into the

qualifying marriage in good faith; (2) the marriage has terminated,

except through death of his spouse; and (3) he was not at fault for

failing to meet the I-751 filing and interview requirements. Id.

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CIS's request for evidence. 

On December 24, 2009, the CIS denied Duque's I-751 waiver

petition. In its decision, the CIS noted the procedural history of

Duque's applications -- specifically, his prior joint I-751

petition which the CIS denied. The CIS also stated that Duque

"failed to submit any evidence with the waiver petition to

establish that [the] qualifying marriage was entered into in good

faith." As a result, and incorporating by reference the reasoning

contained in its original denial decision, the CIS found that Duque

failed to establish the bona fides of his marriage to Gladys and, 

thus, his eligibility for a waiver.

E. Review by the Immigration Court

Duque sought review of the CIS's denial of his I-751

waiver petition, asking the IJ to overturn the CIS's decision. On

December 8, 2010, Duque and his two witnesses -- Luis Manuel

Hernández ("Hernández") and Jamie Luis Landénez ("Landénez") --

appeared before the IJ to testify in support of Duque's I-751

waiver petition. 

1. Duque's testimony

Duque testified that he and Gladys had lived together

from the date of their marriage until April 30, 2009, when they

"had a problem in the second immigration appointment." According

to Duque, Gladys was having an affair with another man. Hernández

-- Duque's friend and witness -- told him that Gladys had moved to

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another town to live with the man with whom she was having an

affair. Duque testified that, upon hearing this news, he

immediately filed for divorce. On June 5, 2009, Duque and Gladys

divorced, and she married her new partner on June 28, 2009.

Duque was asked why Gladys testified that she did not

live with Duque and that he had paid her to marry him so that he

could obtain immigration benefits. Duque responded that Gladys was

lying because she wanted to "get rid" of him due to her affair. 

Duque denied having admitted at an earlier hearing that he never

lived with Gladys.

Though Duque alleged that Gladys's five-year-old son

Javier lived with them, Duque could not recall the child's last

name or the name of Javier's father, and he stated that he never

celebrated Javier's birthday with him.

Duque testified that he and Gladys lived in an apartment

on Wilson Street, and that his friend, Hernández, had visited them

at the apartment several times for social occasions, such as

Duque's birthday in 2008. Duque indicated that Hernández had known

Gladys prior to her meeting Duque and that Hernández had, in fact,

introduced Gladys to Duque. Duque, however, could not remember

where he was first introduced to Gladys.

Next, Duque claimed that his other friend, Landénez --

who would later testify in his support -- had met with Gladys and

Duque two to three times and that Landénez had attended his 2008

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birthday party. The IJ pointed out that Duque previously claimed

that only four people, of which Landénez was not one, had attended

his birthday party. Duque responded that he might have been

mistaken, but that he was certain Landénez had met Gladys on his

birthday in 2006. 

As evidence of his legitimate marriage to Gladys, Duque

asserted that at the time of the submission of his first petition

-- i.e., the joint I-751 petition submitted with Gladys -- he

proffered a 2007 lease agreement, a joint bank account statement,

a joint medical insurance plan, and joint Sears and JC Penney

credit cards. Though he had lived at the apartment since 2005,

Duque testified that he did not have a lease from before 2007

because the owner had not required one until that time. Duque

claimed that he did not have a lease for 2008, 2009, and 2010

because he told his landlord he was thinking of moving elsewhere

due to troubles with Gladys and the owner did not require him to

sign a new lease.

The IJ noted that Duque had failed to provide the

Immigration Court with any documentary evidence of a shared life

with Gladys –- a task he acknowledged he was required to fulfill -–

and that he had failed to submit any of the documents he claimed to

have given to the CIS interviewer. In response, Duque testified

that he believed that the IJ would have all the evidence that was

in his file from the submission of his joint I-751, and that he

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wanted the IJ to consider the evidence filed earlier as part of his

joint I-751, though he was unable to recall precisely what evidence

he had previously submitted.

The IJ confronted Duque with Gladys's adverse statements

during her CIS interview that she never lived with Duque and that

he paid her money to marry him. The IJ questioned Duque on

whether, after originally denying Gladys's statements at the

interview, he had recanted his story to the interviewer and

admitted Gladys's statements to be true. Duque claimed to not

remember his previous change of heart.

2. Hernández's and Landénez's testimony

Hernández testified next. Hernández first claimed to

have met Gladys and Duque when they married in 2004, but later

recanted and stated he met them both before they married. Though

he could not remember the approximate date when he met Gladys,

Hernández indicated that it was prior to meeting Duque. Later,

however, Hernández testified that he had met Duque first. Although

Hernández first testified that he was unaware of anyone living in

the apartment with Gladys and Duque, he subsequently claimed that

Gladys's son also lived with them.

Hernández claimed that he had seen Gladys with another

man, but he did not testify consistently as to what year he

witnessed the affair -- first claiming that he saw Gladys and

another man in 2005 but later stating that he saw them in 2008. 

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Lastly, though Duque stated that Hernández's wife joined Duque,

Gladys, and Hernández on social outings, Hernández claimed that she

never did.

Landénez, Duque's second witness, initially testified

that Gladys had a son, but later stated that he was unsure. He did

testify that he never saw any children in Duque’s apartment during

any of his visits to Duque's home. Landénez contradicted Duque’s

testimony that Landénez had met Gladys in 2006, and instead claimed

to have met her at their wedding in 2004.

F. The IJ's decision

On December 8, 2010, the IJ denied Duque's request for an

I-751 waiver and his request for voluntary departure, and ordered

his removal from the United States. The IJ based his decision on

the finding that Duque and his witnesses were not credible, and

hence, Duque failed to prove that his marriage to Gladys was

legitimate.

The IJ noted the myriad inconsistencies between and

within the testimonies of the three men. The IJ also noted that,

while testifying, Duque "seemed lost to respond, he was evasive[,]"

and that his "demeanor was that of someone who is not telling the

truth or is not sure about what he is saying."

Accordingly, the IJ found that Duque provided no evidence

to support the proposition that he had entered into a good-faith

marriage with Gladys, and that he provided no evidence to overcome

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the CIS’s initial decision that the joint I-751 petition contained

false information. Thus, the IJ held that Duque was ineligible for

an I-751 waiver of the joint filing requirements. Because the IJ

found that Duque provided false testimony in both the hearing as

well as his interview with the CIS, the IJ denied Duque's request

for voluntary departure on the basis that Duque failed to show good

moral character.3

G. The BIA's decision

Duque appealed the IJ's decision to the BIA. Duque

argued that the CIS failed to conduct a second interview to

determine whether his marriage was bona fide, and did not allow him

to testify or submit evidence to support his claim. Duque took

issue with the IJ's allegedly excessive questioning during the

hearing and argued that this prevented proper cross-examination by

his attorney. Further, he argued that the CIS erred when it denied

his waiver request by simply incorporating by reference the

reasoning stated in the agency's denial of his joint I-751

petition. Duque, however, did not appeal the IJ's finding that his

witnesses were not credible, and that he had failed to provide

3 8 U.S.C. § 1229c(b)(1), requires, among other things, that in

order to establish eligibility for voluntary departure the alien

must have been a person of good moral character for at least five

years immediately preceding the application for voluntary

departure. Further, decisions concerning voluntary departure fall

within the discretion of an Immigration Judge. Kandamar v.

Gonzales, 464 F.3d 65, 69 (1st Cir. 2006) (stating that voluntary

departure is a "privilege, not a right" and within the discretion

of the IJ) (quoting Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st

Cir. 2005)) (internal quotation marks omitted). 

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sufficient evidence to support his petition.

On February 4, 2013, the BIA dismissed Duque's appeal

from the IJ's decision denying his application for an I-751 waiver. 

The BIA rejected all of Duque's procedural arguments and concluded

that Duque did not challenge the IJ's adverse credibility

determinations, the findings relating to his failure to meet his

burden of proof, or the denial of his request for voluntary

departure. Duque's timely appeal followed.

II. Discussion

We review the BIA's order under the deferential

"substantial evidence" standard. Kinisu v. Holder, 721 F.3d 29, 34

(1st Cir. 2013). We will uphold the BIA's decision if "supported

by reasonable, substantial, and probative evidence on the record

considered as a whole." Syed v. Ashcroft, 389 F.3d 248, 251 (1st

Cir. 2004) (internal quotation marks omitted) (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)). Accordingly, this court

will not reverse factual determinations unless the record evidence

would "compel a reasonable factfinder to reach a contrary

determination." Kinisu, 721 F.3d at 34 (quoting Chhay v. Mukasey,

540 F.3d 1, 5 (1st Cir. 2008)) (internal quotation marks omitted). 

The credibility of a witness is a question of fact. McKenzieFrancisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011). 

Also, "[t]his court has jurisdiction to review a final

order of removal only if 'the alien has exhausted all

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administrative remedies available to the alien as of right.'" 

Kinisu, 721 F.3d at 34 (quoting 8 U.S.C. § 1252(d)(1)). "The law

of this circuit is clear that, if a petitioner fails to press an

argument before the BIA, 'the petitioner has not exhausted [his]

administrative remedies' as to that issue, which, 'in turn,

forecloses this court from exercising jurisdiction over [the

issue].'" Id. (quoting Chhay v. Mukasey, 540 F.3d at 5-6); see

also Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006). 

Under § 216(c)(4) of the INA, 8 U.S.C. § 1186a(c)(4), the

Attorney General may remove the conditional basis of an alien’s

residency on the basis of a marriage to a U.S. citizen. The

Attorney General may grant a waiver of the joint filing requirement

to remove the conditional status if the alien establishes that “the

qualifying marriage was entered into in good faith by the alien

spouse, but the qualifying marriage has been terminated.” Id. The

petitioner carries the burden of proving that the marriage was

entered into in good faith. Kinisu, 721 F.3d at 34 (citing

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

In his petition for review, Duque argues that: (1) the IJ

erred in determining that Duque failed to provide sufficient

evidence in support of his I-751 waiver petition ; (2) the IJ erred

in finding his witnesses not credible; (3) the IJ erred in denying

his application for voluntary departure; and (4) the IJ and BIA

erred by upholding the CIS's decision on his I-751 waiver petition

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in violation of its own practice and procedures, resulting in a

violation of Duque's due process rights. We address each of these

arguments in turn.

A. Duque's unexhausted arguments

The BIA found, correctly, that Duque failed to raise

before it several challenges to the IJ's findings. Specifically,

Duque failed to challenge before the BIA: the IJ's adverse

credibility findings of Duque's testimony and that of his

witnesses; the IJ's finding that Duque failed to satisfy his burden

of proof showing that he entered into his marriage with Gladys in

good faith; and the IJ's denial of his application for voluntary

departure. Unfortunately for Duque, his failure to raise these

challenges with the BIA deprives this court of jurisdiction to

review them. Jing Qing Wu v. Holder, 705 F.3d 1, 3 (1st Cir.

2013); see also Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008)

(stating that claims not presented to the BIA are not reviewable). 

We need go no further. 

B. Duque's due process claims

We do have jurisdiction to consider on of Duque's

arguments: that the IJ and the BIA erred by allowing the CIS to

adjudicate his I-751 waiver petition in violation of the CIS's own

practice and procedure. Duque points to an internal memo released

by then Acting Associate Director of the Domestic Operations

Directorate of the CIS, according to which "[a]n IJ cannot review

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an I-751 petition . . . . unless [the CIS] has first adjudicated

the petition on its merits," and "if a waiver request petition

follows the denial of a joint filed petition" then "the [CIS] will

evaluate the new petition separately from the previous denial." 

Memorandum from Donald Neufeld, the Acting Associate Director,

Domestic Operations Directorate, of the CIS, to Field Leaders in

the CIS on the Proper Ways to Adjudicate I-751 Applications and I751 Waiver Petitions (Oct. 9, 2009)(on file with the CIS).

Duque claims the agency erred when it incorporated by

reference the reasoning used to deny his original I-751 petition in

its denial of Duque's I-751 waiver petition. He asserts that this

action violated his due process rights because it deprived him of

his right to an adjudication on the merits -- including an

interview -- of his I-751 waiver petition by the CIS, prior to a

ruling from an IJ. Such a violation, according to Duque, requires

us to vacate the BIA's decision and remand the case back to the CIS

even if, in his own words, his "chances of obtaining a waiver are

slim." 

Yet, "before a petitioner in an immigration case may

advance a procedural due process claim, he must allege some

cognizable prejudice fairly attributable to the challenged

process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004)

(citing Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir.

2002)); Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999)). 

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"Prejudice is an amorphous concept, and necessarily so, given the

wide variety of facts that may arise." Kheireddine v. Gonzales,

427 F.3d 80, 85 (1st Cir. 2005). On this record, Duque's hearing

before the IJ cured any potential prejudice Duque might have faced

due to the alleged procedural transgression. 

Even assuming that the failure to hold a second interview

during the adjudication of Duque's I-751 waiver petition as

suggested by an internal INS memo4 could abridge a petitioner's due

process rights -- a rather dubious proposition -- Duque has failed

to show any cognizable prejudice. In his brief, Duque "does not

assert that, if given the procedural safeguards he seeks, the

result in this case would be any different." Ojeda-Terrazas, 290

F.3d at 302 (refusing to reach the merits of petitioner's due

process claim where the petitioner failed to assert that the

outcome of the case would have been different had proper procedure

been followed). Indeed, given the utter lack of reliable evidence

to support his case, it is unlikely the result would differ.

4 We note that the memo "is intended solely for the training and

guidance of [CIS] personnel in performing their duties relative to

the adjudication of applications. It is not intended to, does not,

and may not be relied upon to create any right or benefit,

substantive or procedural, enforceable at law or by any individual

or other party in removal proceedings, in litigation with the

United States, or in any other form or manner." Memorandum from

Donald Neufeld, the Acting Associate Director, Domestic Operations

Directorate, of the CIS, to Field Leaders in the CIS on the Proper

Ways to Adjudicate I-751 Applications and I-751 Waiver Petitions

(Oct. 9, 2009)(on file with the CIS).

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Instead of arguing he might have otherwise fared better,

Duque contends that it was a violation of his due process rights

for the CIS to fail to provide him with an interview in connection

to his I-751 waiver petition. He also protests he was not provided

a point by point explanation as to why the evidence submitted in

connection with that petition was insufficient to overcome the

CIS's findings in its initial joint I-751 decision that Duque had

provided false statements and information.

The record, however, reveals otherwise. At the removal

hearing, Duque was offered the opportunity to renew his request for

a waiver as well as fully present his case by submitting

documentary evidence in support of his request5 -- a right Duque

had, but failed to exercise. See In re Herrera Del Orden, 25 I. &

N. Dec. 589, 595 (BIA 2011) (stating that under 8 C.F.R. §

1216.5(f), when an alien seeks review in removal proceedings of a

CIS decision denying his waiver application, the alien may renew

his application before the IJ and present new evidence in support

of his request, to satisfy his burden to establish eligibility for

relief from removal). Thus, the IJ did adjudicate Duque's petition

on the merits, with the record that stood before it. 

Further, the BIA found that the IJ fully addressed

Duque's waiver request by carefully considering Duque's evidence

5 Duque acknowledges that he was required to submit documentary

evidence of a shared life with Gladys to the IJ -- a task he failed

to complete. Additionally, Duque was unable to recall what

evidence he submitted as part of his I-751 waiver petition. 

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and testimony in making its decision, and it did not base the

decision solely on the prior denial of the joint I-751 petition. 

That the record was barren of any credible evidence in Duque's

favor is a defect entirely of his own making. Thus, Duque is

unable to sufficiently allege a cognizable prejudice, and as a

result, he is unable to sustain a procedural due process claim. 

See Lattab, 384 F.3d at 20.

III. Conclusion

All of Duque's arguments fail to carry the day. In sum,

because Duque failed to challenge the IJ's findings below, and 

failed to sufficiently allege a cognizable prejudice to his due

process rights, we agree with the BIA's denial of his petition. 

Accordingly, Duque's petition for review is denied.

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