United States Court of Appeals 

For the First Circuit 

No. 15-1266 

ARSENIO VALDEZ, 

Petitioner, 

v. 

LORETTA E. LYNCH,* Attorney General, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Selya, and Thompson, 

Circuit Judges. 

 John H. Ruginski, Jr. on brief for petitioner. 

 Channah F. Norman, Trial Attorney, Office of Immigration 

Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, Civil Division, and Mary Jane Candaux, Assistant 

Director, Office of Immigration Litigation, on brief for 

respondent. 

February 10, 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. 
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THOMPSON, Circuit Judge. Petitioner Arsenio Valdez 

seeks review of an order of the Board of Immigration Appeals 

("BIA") denying his request for a so-called "marriage waiver" from 

removal. For the reasons explained below, the petition will be 

denied. 

BACKGROUND

Valdez, a citizen and native of the Dominican Republic, 

obtained conditional permanent resident status in 1996 after 

marrying an American citizen the year before. Their marriage fell 

on hard times, and the couple separated in the early 2000s, with 

their divorce becoming final in 2008. 

Served with a Notice to Appear in October of 2011, Valdez 

conceded removability at a hearing before an immigration judge 

("IJ"). At the same time, Valdez sought relief from removal in 

the form of an adjustment of status from conditional permanent 

resident to permanent resident. He also asked for a waiver of the 

usual requirement to present his status-change request jointly 

with his spouse. He said that he was forced to make this request 

on his own, and thus needed a waiver from the joint petition 

requirement, because he had "entered into the marriage in good 

faith but the marriage was terminated through divorce or 

annulment." 

After considering Valdez's evidence, the IJ concluded 

that Valdez failed to establish he had entered into his marriage 
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in good faith. Accordingly, she ordered him removed to the 

Dominican Republic. Valdez appealed to the BIA, which in a written 

decision discussed what it saw as a lack of evidence that Valdez 

married in good faith, and upheld the IJ's decision in its entirety 

after concluding that Valdez "failed his burden of proof to 

establish that the marriage was bona fide." 

Aggrieved, Valdez filed a timely petition for review 

with this court. 

STANDARD OF REVIEW 

In denying Valdez's appeal, the BIA discussed the 

evidence adduced before the IJ and the legal arguments Valdez made 

as to why the IJ got it wrong. In affirming the IJ, the BIA 

indicated that it had relied on its own reasoning, plus the reasons 

"articulated by the [IJ] in her decision . . . ." Because the BIA 

did not simply adopt the IJ's decision, but relied instead on a 

combination of its own reasoning and the IJ's, we review the IJ's 

and the BIA's decisions together. Dimova v. Holder, 783 F.3d 30, 

35 (1st Cir. 2015). 

The parties agree that Valdez bore the burden of showing 

that he entered into his marriage in "good faith." Lamim v. 

Holder, 760 F.3d 135, 137 (1st Cir. 2014). Whether or not this 

burden has been met is a call for the IJ or BIA to make in the 

first instance, as the "judgment about whether a marriage was 

entered into in good faith is a factual one." Id. at 138 (citing 
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Jing Lin v. Holder, 759 F.3d 110, 112 (1st Cir. 2014)). We must 

uphold the factfinder's judgment as to the presence or absence of 

good faith "so long as it is 'supported by reasonable, substantial, 

and probative evidence on the record considered as a whole.'" Id. 

(quoting Reynoso v. Holder, 711 F.3d 199, 205 (1st Cir. 2013)). 

What this all means is that we will only reverse the IJ's or the 

BIA's finding on whether a marriage was entered into in good faith 

if "the record evidence would 'compel a reasonable factfinder to 

reach a contrary determination.'" Jing Lin, 759 F.3d at 112 

(quoting Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir. 2013)). 

DISCUSSION 

A.

First, the lay of the land. A noncitizen who marries a 

United States citizen may obtain conditional permanent resident 

status. See 8 U.S.C. § 1186a(a)(1). To remove that condition, 

the two spouses must file a joint petition with the Department of 

Homeland Security asking for it to be removed, and they must do so 

within the ninety-day window before the second anniversary of the 

noncitizen spouse's attainment of conditional permanent resident 

status. See id. § 1186a(c)(1)(A); 8 C.F.R. § 1216.5(a). Failure 

to file the petition in the time allotted results in termination 

of the noncitizen spouse's conditional permanent resident status. 

8 U.S.C. § 1186a(c)(2). 
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A couple that does not file their petition on time can 

jointly apply for a "hardship waiver" of the timing requirement. 

See id. § 1186a(c)(4). If the noncitizen spouse is unable to file 

a joint application because the marriage has already ended, he 

must show -- among other things -- that he married his ex-spouse 

"in good faith." Id. § 1186a(c)(4)(B). "Good faith" in this 

context means that the noncitizen "intended to establish a life 

with [his] spouse at the time" of marriage. Cho v. Gonzales, 404 

F.3d 96, 102 (1st Cir. 2005). The noncitizen's burden of proving 

good faith may be satisfied "by introducing 'evidence relating to 

the amount of commitment by both parties to the marital 

relationship.'" Lamim, 760 F.3d at 137 (quoting 8 C.F.R. 

§ 1216.5(e)(2)). 

Evidence of good faith includes the following: 

(i) Documentation relating to the degree to 

which the financial assets and liabilities of 

the parties were combined; 

(ii) Documentation concerning the length of 

time during which the parties cohabited after 

the marriage and after the alien obtained 

permanent residence; 

(iii) Birth certificates of children born to 

the marriage; and 

(iv) Other evidence deemed pertinent . . . . 

8 C.F.R. § 1216.5(e)(2). 

 Pursuant to this regulation "immigration authorities 

[are] to evaluate 'good faith' on the basis of documentation 
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concerning the couple's cohabitation, the degree to which the 

couple's finances were commingled, any children born to the 

marriage, or other pertinent evidence." Lamim, 760 F.3d at 138. 

Clearly, the regulation prioritizes written evidence over 

testimonial assertions, as three out of the four categories consist 

of "documentation" or "certificates." See 8 C.F.R. 

§ 1216.5(e)(2)(i)-(iv); see also Lamim, 760 F.3d at 138 (focusing 

our analysis on documentary evidence). Indeed, it would seem that 

oral testimony only falls under the fourth category if "deemed 

pertinent" by the immigration authorities. 8 C.F.R. 

§ 1216.5(e)(2)(iv). 

B. 

 Valdez's flagship argument is that the IJ and BIA should 

be reversed because they ignored probative and uncontroverted 

evidence in the record demonstrating that he married in good 

faith.1 The government, by contrast, says that Valdez's evidence 

was not strong enough to compel us to reverse the IJ and BIA. 

 Here, the IJ and the BIA held only that Valdez failed to 

carry his burden of proving that he married in good faith. Our 

review of the record confirms that the IJ's and the BIA's decisions 

 1 He also throws in a couple references to "due process," but 

fails to develop an argument along those lines. Therefore, any 

due process argument that could have been made is waived. United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
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are supported by reasonable, substantial, and probative evidence. 

Nothing comes close to compelling us to reach the opposite result. 

Valdez testified in front of the IJ that he (then age 

37) and Evelyn Mercedes Veracruz (age 50) got married in Puerto 

Rico in 1995, and that their marriage ended in divorce in 2008. 

They married because Valdez "fell in love with her" after they 

met. He did not testify about when or under what circumstances 

they met, what their life was like before or after their wedding, 

or provide any details about the wedding ceremony. 

After the wedding, Valdez and his wife, who had lived 

together before marriage, continued cohabitating in Puerto Rico 

for at least part of 1995 (the exact timeframe is by no means 

clear). In 1996, Valdez moved to Rhode Island (for reasons not 

disclosed in this record), where he began working, while his wife 

stayed behind on the island. It was not until 1998 that Valdez 

went to Puerto Rico and brought his wife back to Pawtucket, where 

they lived together for "about three months." Valdez explained 

that his wife never wanted to be in Rhode Island due to the cold 

weather and her arthritis, so she returned to Puerto Rico. Valdez 

would "send her a lot of money" there, but his cousins in Puerto 

Rico told him that she would "drink that money."2

 2 No one asked Valdez to explain what he meant by this remark. 
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Valdez testified his marriage was "valid" and that it 

did not produce any children because his wife "couldn't give 

birth." He said that the two did not have joint ownership of any 

real estate, but that both his and his wife's names were on one of 

his apartment leases. In addition, Valdez said they owned a car 

together (although his wife's name was not on the title because 

she didn't have a driver's license), and that they had a joint 

bank account at Fleet National Bank. 

Sometime around the year 2000, Valdez "started noticing" 

that his wife was having an affair. Valdez pointed to the affair 

-- along with his wife's unwillingness to stay in Rhode Island -- 

as causing their separation. They parted company around December 

2001, and Valdez "lost contact" with her in 2002 or 2003. 

 Valdez also submitted various documents in support of 

his claim. Included among them were numerous federal and state 

tax returns as evidence of the couple's commingling of financial 

assets and liabilities. See 8 C.F.R. § 1216.5(e)(2)(i). Valdez 

did not produce any leases or other documents to back up his 

assertion that he and his wife lived together following their 

marriage. See id. § 1216.5(e)(2)(ii). Furthermore, and 

unsurprisingly in light of his testimony that his wife was unable 

to bear children, Valdez did not submit birth certificates from 

any children born to the marriage. See id. § 1216.5(e)(2)(iii). 
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Valdez's other documents must be considered as "other" 

pertinent evidence because they did not bear on commingling of 

assets or the amount of time the couple lived together. See id. 

§ 1216.5(e)(2)(iv). In that vein, Valdez introduced a signed 

statement "affirm[ing] and attest[ing] and testif[ying] before God 

and men" that his marriage "was a true marriage," along with two 

affidavits from friends who did not mention his marriage, but 

attested to his good moral character. Finally, he submitted a 

copy of the State Department's country report for the Dominican 

Republic and a background check from the Hartford (Connecticut) 

Police Department showing he had no criminal record in that city.3

Considering the evidence "as a whole," Lamim, 760 F.3d 

at 138, we find that Valdez's presentation was not so compelling 

as to permit us to find fault with the IJ's and BIA's 

determinations that he had failed to carry his burden of proof. 

First, Valdez's testimony is clearly insufficient to 

carry his burden of showing that he married in good faith. True, 

he did testify that his marriage was "valid." But when two 

individuals "enter into a good-faith marriage, their wedding day 

is a significant (and, therefore, memorable) event," McKenzieFrancisco v. Holder, 662 F.3d 584, 587 (1st Cir. 2011), and Valdez 

 3 This document indicated Valdez lived there at one point. 
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gave no details about the ceremony. So his bald assertion that 

his marriage was "valid" does him no good. 

And his barebones testimony about his and his wife's 

living and financial arrangements cannot carry the day either. We 

have never held that testimony as general and bereft of detail as 

Valdez's is sufficient to make out a "good faith" showing. To the 

contrary, our caselaw indicates such testimony is simply not 

enough. Cf. Reynoso, 711 F.3d at 207 (finding that the 

petitioner's testimony was not sufficient to "overcome[] the 

weaknesses in the documentary evidence" where the details of "her 

oral and written statements contain[ed] numerous 

inconsistencies"). 

The documents Valdez submitted do not get him over the 

hump. The tax returns do little to help, as the only one between 

1996 and 2001 purporting to bear his wife's signature is the 2000 

Rhode Island return. The remainder were either blank or signed by 

Valdez only, even though they were filed as joint returns. Not 

one lists an occupation for, or any income attributable to, 

Valdez's wife. Plainly, the tax returns provide no evidence of 

any commingling of financial assets or liabilities. Valdez did 

not come forward with any other documents evidencing commingling. 

The record is similarly devoid of documentary evidence showing the 

couple lived together after they were married, and there are no 

birth certificates to consider. 
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The remaining documents are of no assistance either, as 

Valdez's own written statement added nothing to his testimony 

before the IJ, and the affidavits from his friends did not so much 

as mention his marriage. And it takes but a moment's thought to 

conclude that the State Department's country report and the 

background check from the Hartford Police have nothing to say about 

whether Valdez married in good faith. 

 In accordance with our prior decisions, we conclude that 

the scant testimonial and documentary evidence in the record is 

far from sufficient to allow us to overturn the IJ's and BIA's 

well-founded conclusion that Valdez failed to meet his burden of 

showing that he married in good faith.4 See Lamim, 760 F.3d at 

 4 This case is a far cry from Cho v. Gonzales, 404 F.3d 96 

(1st Cir. 2005), where we concluded that the BIA erred in finding 

that the petitioner failed to meet the burden of showing good 

faith. Cho is instructive in its differences. The uncontradicted 

evidence in that case was corroborated by documents and showed 

that the couple engaged in a lengthy courtship with frequent phone 

calls prior to marriage, that they ultimately moved in together, 

and that they "jointly enrolled in a health insurance policy, filed 

tax returns, opened bank accounts, entered into automobile 

financing agreements, and secured a credit card." Id. at 103. 

The petitioner also "introduced extensive counseling records from 

the period following her separation [from her husband] which 

detailed her therapists' perceptions that she harbored a strong 

desire to make her marriage work and her serious depression over 

its troubles and eventual failure." Id. 

Valdez has come forward with nothing remotely similar to the 

evidence in Cho. Given the dearth of evidence in this record 

bearing on good faith, we need not speculate as to the quantum of 

proof required for a petitioner to meet the burden of showing good 

faith. Wherever that line may be, Valdez does not approach it. 
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138-39 (where the record was devoid of "documentation 'evidencing 

commingling' of the couple's finances, contained only 'limited' 

evidence of cohabitation, . . . '[and] lacked the type of 

memorabilia that marriages typically produce[,]' . . . the [BIA] 

could not say that [the petitioner] entered into his marriage with 

[his ex-spouse] in 'good faith.'" (first alteration in original)); 

Jing Lin, 759 F.3d at 112 (taking into account factors including 

the petitioner's failure "to offer any documentary evidence, such 

as a joint bank account or general commingling of assets, which 

typically accompanies a valid marriage," that the "couple lived 

apart for nearly all of their marriage," and the petitioner's lack 

of knowledge of "basic details about her husband, his family, and 

his life before they met"). 

C. 

 Attempting to make up for his inadequate evidentiary 

presentation and avoid denial of his petition for review, Valdez 

advances a couple of last-ditch arguments. 

 First, he says the IJ and the BIA erroneously required 

him to meet the "well-nigh impossible" burden of demonstrating 

"his spouse's actual intents or motives" in marrying him. We see 

nothing in the IJ's or BIA's decisions indicating that Valdez was 

held to such a standard. And Valdez himself doesn't even point to 
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any language in either decision to support this argument.5 So we 

reject it out of hand. 

 Finally, Valdez intimates that he should not be faulted 

for being unable to produce corroborative documentary evidence 

because its absence "was the consequence of a protracted delay, of 

a decade" in the government's asking him for it. This is a 

nonstarter. 

 The requirement to present documentary evidence to 

corroborate an applicant's testimony has existed for decades. See, 

e.g., Nyonzele v. INS, 83 F.3d 975, 980 (8th Cir. 1996) (discussing 

8 C.F.R. § 216.5(e)(2), the then-effective regulation, and its 

call for production of "documentation concerning [a couple's] 

combined financial assets and liabilities, the length of time 

during which they cohabited after the marriage and after the alien 

obtained conditional permanent resident status, and any other 

relevant evidence"); Matter of Laureano, 19 I & N Dec. 1, *3 

(B.I.A. 1983) (recognizing that evidence of good faith "could take 

many forms, including, but not limited to, proof that the 

beneficiary [i.e., the noncitizen spouse] has been listed as the 

petitioner's spouse on insurance policies, property leases, income 

tax forms, or bank accounts" (citing Matter of Phillis, 15 I & N 

 5 His appellate brief's quotation of the IJ's conclusion that 

Valdez "has not met his burden of proving that he entered into a 

qualifying marriage in good faith," actually cuts in favor of 

finding that the IJ applied the correct legal standard. 
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Dec. 385 (B.I.A. 1975)). Valdez, who as best we can tell from the 

record was represented by counsel throughout these proceedings, 

can hardly claim to have been unaware that the IJ and BIA might 

expect him to back up his testimony with documentary proof. 

 But even more importantly, Valdez never asked the IJ for 

a continuance to obtain documents, and he did not tell the IJ that 

he couldn't get ahold of anything as a result of the passage of 

time. He also failed to raise any argument about the 

unavailability of documents in his appeal to the BIA. Because 

"[t]his court lacks jurisdiction over arguments not pressed before 

the BIA," Jing Lin, 759 F.3d at 112 n.1, we may not and do not 

consider this point. 

CONCLUSION 

Let us be perfectly clear: we do not hold that a 

petitioner can never establish that he married in good faith based 

in whole or in part on his own testimony. What we do hold is that 

the decisions of both the IJ and the BIA concluding that Valdez 

failed to carry his burden of proof in this instance are supported 

by substantial evidence. For the foregoing reasons, Valdez's 

petition for review is denied.