2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-1-2010

Jorge Perez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3778

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3778

___________

JORGE L. PEREZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A045-628-544)

Immigration Judge: Eugene Pugliese

____________________________________

Submitted Under Third Circuit LAR 34.1(a)

April 12, 2010

Before: McKEE, Chief Judge, FUENTES and NYGAARD, Circuit Judges

(Opinion filed: July 1, 2010)

_________

OPINION

_________

PER CURIAM

Petitioner Jorge Perez, a citizen of Peru, seeks review of a final order of removal.

For the reasons that follow, we will deny his petition for review.
 That statute provides that the Government has discretion to “remove the conditional 1

basis of the permanent resident status for an alien” if he demonstrates that, even though it

dissolved, the marriage in question was entered into in good faith.

 “In the case of an alien with permanent resident status on a conditional basis . . ., if 2

the Attorney general determines, before the second anniversary of the alien’s obtaining

the status of lawful admission for permanent residence, that the qualifying marriage was

entered into for the purpose of procuring an alien’s admission as an immigrant, or has

been judicially annulled or terminated, other than through the death of a spouse . . . the

Attorney General shall so notify the parties involved and, . . . shall terminate the

permanent resident status of the alien (or aliens) involved as of the date of the

determination.” 8 U.S.C. § 1186a(b)(1). 

 The affidavit also indicated that Price had not met Perez until the day they were 3

married. Apparently, Price passed away the same year she produced the affidavit.

2

I

Perez entered the United States without inspection on an unspecified date. 

According to Perez, he met Tanya Price, a United States citizen, in 1994 through a mutual

acquaintance. In March 1995, Perez and Price were married. Perez eventually received

conditional permanent resident (“CPR”) status based on that marriage. The pair divorced,

however, in July 2002. To stay in the United States, Perez filed an application for a

hardship waiver under 8 U.S.C. § 1186a(c)(4)(B). In February 2006, the application was 1

denied, and Perez’s CPR status terminated, based on the Government’s determination that

Perez entered into his marriage to Price for the sole purpose of procuring an immigration

benefit. That determination resulted from the Government’s production of a February 2

2000 affidavit from Price which claimed that she was paid $5000 in exchange for her

marriage to Perez.3
3

Perez was issued a Notice to Appear in March 2006. At a hearing before an

Immigration Judge (“the IJ”), Perez denied the charges against him: those being that he

entered the United States illegally, and that he had entered into his marriage to Price in

bad faith. Perez again applied for a hardship waiver pursuant to § 1186a(c)(4)(B). After

hearing Perez’s testimony, the IJ determined that Perez had not carried his burden for

establishing eligibility for the waiver and Perez was ordered to be removed to Peru. In

support of his ruling, the IJ stated that “the gun with the most smoke coming out of it here

today is this sworn statement from [Price].” The IJ also chastised Perez for the

inconsistencies in his testimony, for his demeanor while testifying (“[Perez] lacks any

sense of liveliness, of animation. There is simply nothing in terms of emotion to anything

he has said. Everything here today was delivered in a flat, low monotone, creating the

impression in the Court’s mind that [Perez] would rather be somewhere else than here

testifying today”), and for his failure to bring any supporting affidavits or witnesses to

testify on his behalf. 

The Board of Immigration Appeals (“BIA”) dismissed Perez’s appeal. The BIA

first rejected Perez’s claim that the Government’s delay in processing his waiver

application denied him due process. On that point, and relying on Mudric v. Att’y Gen.,

469 F.3d 94, 98-99 (3d Cir. 2006), the BIA stated that aliens “have no constitutional right

to have the applications considered as quickly as they desire.” The BIA also rejected

Perez’s argument that the Government should have been estopped from using the Price
4

affidavit at the hearing because the Government had improperly “concealed” the affidavit

for six years. The BIA again cited Mudric, this time to support its conclusion that Perez

had not met the requirements to equitably estop the Government from using the Price

affidavit. Perez appealed. 

II

We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a). 

See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “Where the BIA renders its

own decision and does not merely adopt the opinion of the IJ, we review the BIA’s

decision, not that of the IJ.” Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir. 2008). We

review de novo constitutional claims and questions of law raised on appeal. Yusupov v.

Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). 

III

Claims concerning the Price affidavit predominate Perez’s opening brief. He

argues that the Price affidavit is false, that it is “markedly out of context with the

evidence of [his] joint married life,” and that “[b]y withholding from me more than six

years that critical piece of evidence, . . . DHS left me no reasonable opportunity to rebut

the statement.” Perez also argues that the Price affidavit lacks sufficient evidentiary

foundation, and that “t]he passage of time lent this statement a credibility that it did not

deserve.” Two claims are readily apparent from this line of argument. On the one hand,

Perez contends that the Government’s production of the Price affidavit in 2000, and its
 To the extent Perez is also claiming that the Government’s delay in processing his 4

cancellation of removal application deprived him of due process, we must reject that

claim for the same reason given in the BIA’s decision.

5

introduction of the affidavit at the removal hearing, constitute foul play. Thus, Perez

raises the same equitable estoppel claim that he did on appeal to the BIA. Separate and

apart from the equitable estoppel claim, though, Perez challenges the admissibility of the

Price affidavit as a matter of evidentiary law. We will address these two claims in turn. 

4

To prevail on his equitable estoppel claim, Perez “must establish (1) a

misrepresentation; (2) upon which he reasonably relied; (3) to his detriment; and (4)

affirmative misconduct.” Mudric, 469 F.3d at 99. Proof of affirmative misconduct on the

part of the Government is a demanding burden, see Yang v. INS, 574 F.2d 171, 175 (3d

Cir. 1978), one that Perez has not carried; there is no evidence in the record that even

remotely suggests the Government acted improperly in either obtaining the Price affidavit

or presenting it at the removal hearing. Because Perez has not established affirmative

misconduct by the Government, we agree with the BIA that his equitable estoppel claim

must fail. 

Perez also challenges the admissibility of the Price affidavit at the removal hearing

as a matter of evidentiary law. Although the Federal Rules of Evidence do not apply in

removal proceedings, evidence can be held inadmissible if it is not probative and if its

admission would be fundamentally unfair to the alien. See Ezeagwuna v. Ashcroft, 325

F.3d 396, 405 (3d Cir. 2003). However, we cannot reach the merits of this claim. The
 While our Garcia opinion may not have been available at the time Perez filed his 5

appellate brief with the BIA, our opinion in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996),

was, and Garcia merely reaffirmed Bamidele’s holding in light of IIRIRA’s amendments

to the immigration statute. Moreover, Perez’ statute of limitations argument is not

constitutional in nature, such that it would be exempt from the exhaustion requirement.

See Mudric, 469 F.3d at 98. 

6

jurisdictional principle of issue exhaustion precludes our review of claims, like this one,

that were neither presented to nor adjudicated by the BIA. See Hoxha v. Holder, 559 F.3d

157, 159 (3d Cir. 2009) (an alien must “raise or exhaust his or her remedies as to each

claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial

review of that claim”). 

Finally, Perez claims that he is entitled to relief pursuant to 8 U.S.C. § 1256(a)

(five-year limitations period for government to rescind alien’s adjustment of status based

on alien’s fraud in acquiring that status), and Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir.

2009) (reaffirming prior precedent that held § 1256(a)’s limitations period can bar both

rescission of status and removal proceedings not commenced within five years of the

alien’s adjustment of status). Like his evidentiary claim, we also lack jurisdiction to

consider Perez’s statute of limitations claim because it was not raised on appeal to the

BIA. See Hoxha, 559 F.3d at 159.5

Accordingly, we will deny Perez’s petition for review.