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Davis v. Lynch

United States Court of Appeals, First Circuit

September 21, 2015

RADCLIFFE DAVIS, Petitioner,
v.
LORETTA E. LYNCH, [*] ATTORNEY GENERAL OF THE UNITED STATES, Respondent

As corrected October 6, 2015.

Page 169

[Copyrighted Material Omitted]

Page 170

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Joshua Daley Paulin and Law Offices of Joshua Daley Paulin, on brief for petitioner.

Monica Antoun, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Acting Assistant Attorney General, and Shelley R. Goad, Assistant Director, on brief for respondent.

Before Torruella, Lynch, and Lipez, Circuit Judges.

OPINION

Page 171

TORRUELLA, Circuit Judge.

Petitioner Radcliffe Davis petitions this court to review a decision of the Board of Immigration Appeals (" BIA" ) affirming an Immigration Judge's (" IJ" ) decision that Davis did not enter into his marriage to Nadine Woodley Davis (" Woodley" ) in good faith, but rather for the sole purpose of circumventing immigration laws. He also contends that the BIA erred when it refused to remand the proceedings to the IJ given his recent marriage to another United States citizen. For the reasons that follow, we deny the petition.

I. Background & Procedural History

We recount the facts as Davis testified to them before the agency, except where otherwise noted. Davis is a forty-five-year-old native and citizen of Jamaica who legally entered the United States on a visitor visa on December 19, 2007. On October 21, 2008, he adjusted his status to that of a conditional permanent resident based on his marriage to Woodley, a United States citizen, on April 19, 2007. This status terminated on October 21, 2010, when the United States Citizenship and Immigration Services (" USCIS" ) denied Davis's request for a waiver of the requirement that he file a joint petition with Woodley to remove the conditional status. According to the USCIS, Davis, who had since divorced Woodley, failed to submit

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evidence " to establish that [his] marriage to Nadine Davis was in good faith and not entered into for the sole purpose of circumventing immigration laws." [1]

Given this waiver denial, the Department of Homeland Security (" DHS" ) initiated removal proceedings by filing a Notice to Appear with the Immigration Court on March 20, 2012. The Notice charged Davis with removability under 8 U.S.C. § 1227(a)(1)(D)(i) -- removability due to the termination of a conditional permanent resident status. Davis conceded removability but requested termination of proceedings, adjustment of status, and a review of the waiver application. In the event all of that was denied, he also sought voluntary departure.

A. The Immigration Judge Proceedings

A hearing was held before an Immigration Judge (" IJ" ) on May 22, 2013, during which Davis was the only witness. He testified that he was born in Kingston, Jamaica, had never previously been married, and had two children -- a son and a daughter -- of whom he had custody.

According to Davis, he met Woodley in August 2006 at a club in Kingston while Woodley was on a three-week vacation. Even though they met the Friday before the Monday Woodley was scheduled to leave Jamaica, the two saw each other again before Woodley left. They also continued to stay in touch; Davis testified that they spoke by phone three or four times per day and emailed " very frequently." He later testified that the two emailed with each other every day.

Davis then began discussing his and Woodley's visits with each other. He testified that he came to the United States to visit her, but could not remember exactly when. He first thought it might have been 2006, but then corrected the date to 2007, though he could not specify the exact dates. Davis did, however, remember that Woodley visited him in Jamaica for two weeks at the end of 2006. During this visit, Woodley stayed at Davis's house, met his family, and developed a romantic relationship with Davis. Davis added that Woodley made one other weekend trip to Jamaica but could not recall exactly when this occurred.

Following this exchange, Davis was once again asked when he flew to the United States to see Woodley, but he still could not remember the date. Davis's counsel requested permission to use Davis's passport to refresh Davis's recollection as to when he visited the United States because Davis was " giving the wrong dates," but DHS objected. It based this objection on two grounds: that the question had already been asked and answered; and that DHS had not had the opportunity to inspect the passport. The IJ sustained the objection on both grounds, noting that " [a]ny document that was going to be used during the proceedings should have been submitted to the Court."

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Without the passport to assist him, Davis stated that he first came to the United States in 2006 to visit a friend on Long Island, New York. When directed to focus on his first visit with Woodley, Davis testified that he visited her for two weeks, stayed at her house, met her extended family, and continued to cultivate a romantic relationship. Davis then proceeded to discuss a second two-week visit with Woodley over Thanksgiving, during which he stayed with Woodley and celebrated Thanksgiving at Woodley's uncle's house.

Davis testified that his next trip to the United States was on April 7, 2007, on a two-week visitor visa. Davis once again stayed with Woodley. During this trip, Woodley raised the topic of marriage. Davis testified that he had wanted to bring up the topic as well but did not know how, so he was happy that Woodley did it first. The two married on April 19, 2007. A few days later -- Davis could not recall the exact date -- Davis returned to Jamaica. Though Woodley did not go with him, the two stayed in " stronger contact" and spoke on the phone and emailed regularly. According to Davis, Woodley called him at 4:30 p.m. every day.

Davis could not recall whether Woodley visited him in Jamaica after their marriage, but he did remember that the next time he visited Woodley was on December 19, 2007. In preparation for the trip, Davis visited the United States Consulate on November 16, 2007, and November 26, 2007, to obtain visitor visas for himself and his children. He could not remember what he told the Consulate, though documents showed that he listed Nadine Woodley as his contact and declared himself to be single.

Davis testified that his initial plan was only to visit Woodley, but Woodley wanted him to stay. According to Davis, he initially rejected this request because his children were in school in Jamaica, he had a good job in Jamaica, and he had a house in Jamaica, but Woodley was persistent. Davis eventually acquiesced and called his employer, ...


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