Maria Pujols; Robinson Matos; Lissette Matos; Erlin Caceres Matos v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4109
MARIA PUJOLS;
ROBINSON MATOS;
LISSETTE MATOS;
ERLIN CACERES MATOS,
Petitioners
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Petition for Review of Orders of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA Nos. A43-447-939, A44-406-972;
A44-406-973 and A44-406-974
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2003
Before: RENDELL, WEIS and GARTH, Circuit Judges
(Filed: October 6, 2003 )
OPINION OF THE COURT
RENDELL, Circuit Judge.

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Maria Pujols and her three children (collectively, “Petitioners”), natives and
citizens of the Dominican Republic, challenge final orders of removal issued by the Board
of Immigration Appeals (“BIA”) on October 9, 2002. As Petitioners were placed into
removal proceedings after April 1, 1997, our jurisdiction to entertain their petition arises
under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252 (2002).
We will deny the petition for review.
We will recite only those facts relevant to the issues before us, as we write
exclusively for the parties. Petitioners’ removal was precipitated by a determination by
the Attorney General that Pujols had committed marriage fraud, and that she therefore
could not retain her status as a conditional permanent resident of the United States. See 8
U.S.C. § 1186a. Because her children’s designation as conditional permanent residents
was predicated on Pujols’s status as such, the Attorney General’s finding rendered all four
Petitioners removable. See 8 U.S.C. § 1227(a)(1)(D)(I). Thus, the Immigration and
Naturalization Service (“INS”) placed Petitioners in removal proceedings on March 8,
1999.
At their hearing before an Immigration Judge (“IJ”) on November 29, 1999,
testimony was presented by Pujols, her husband, and Special Agent Larry Reed of the
INS. Upon considering the witnesses’ testimony and the documentary evidence presented
by Petitioners, the IJ concluded that Pujols had committed marriage fraud, and that
Petitioners were removable for having their status as conditional permanent residents

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terminated. The IJ denied voluntary departure to Pujols, but granted voluntary departure
to her children. Pursuant to its streamlining regulations, 8 C.F.R. § 3.1(e)(4) (2002), the
BIA summarily affirmed the IJ’s decision without issuing an opinion. Petitioners filed
this timely appeal.
On appeal, Petitioners raise three issues: (1) whether the IJ’s decision was
supported by substantial evidence, (2) whether Petitioners’ due process rights were
violated during the hearing before the IJ, and (3) whether the BIA abused its discretion in
applying the streamlining regulations to Petitioners’ case. We address each of these
issues in turn.
First, Petitioners argue that the IJ erred in determining that Pujols had entered into
a sham marriage, and that Petitioners were therefore removable because they were
stripped of their status as conditional permanent residents. As the BIA issued a summary
affirmance, we will review the decision of the IJ. See Gao v. Ashcroft, 299 F.3d 266, 271
(3d Cir. 2002) (stating that a court of appeals must review the decision of the IJ where the
BIA does not issue its own opinion); see also Carriche v. Ashcroft, 335 F.3d 1009, 1014
(9th Cir. 2003) (noting that when the BIA applies its streamlining procedures, the IJ’s
decision is reviewable as the final agency action); Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003) (same). In doing so, we apply the substantial evidence standard, which
allows us to grant the petition and vacate the IJ’s determination only if the evidence is “so
compelling that no reasonable factfinder could fail to find” in Petitioners’ favor. INS v.

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Elias-Zacarias, 502 U.S. 478, 484 (1992).
The central issue in the removal proceeding was whether, at the time of their
marriage, Pujols and her husband “intended to establish a life together.” In re Laureano,
19 I. & N. Dec. 1, 2-3 (B.I.A. 1983). Petitioners expend much energy pointing out, quite
correctly, that Pujols’s eventual separation from her husband does not defeat her claim
that the couple entered into their marriage for legitimate reasons. See, e.g., In re
Boromand, 17 I. & N. Dec. 450, 454 (B.I.A. 1980). But even if we credit this argument,
and even though some of the evidence adduced at the hearing did support Petitioners’
claims that Pujols had married in good faith, we find that the IJ’s determination to the
contrary was nonetheless based on substantial evidence.
The IJ did not base her decision solely on the fact that Pujols and her husband were
separated, although it is one factor that may properly be considered in determining the
parties’ intent. See In re McKee, 17 I. & N. Dec. 332, 334 (B.I.A. 1980). Instead, the IJ
explicitly indicated that other factors informed her decision. One factor was her rejection
of the testimony of Pujols’s husband. The IJ noted the fundamental inconsistencies
regarding whether the couple was still married, when the marriage took place, how often
the couple saw each other since their separation, and whether he knew which of Pujols’s
children was the oldest. Other factors included a tax return where Pujols’s husband
indicated that he was “single” after the two were married, Pujols’s nervous demeanor
while her husband testified, and conflicting statements by Pujols’s husband regarding

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1For example, the IJ’s interpretation of Pujols’s demeanor during her husband’s
testimony might be regarded as questionable. It might also seem troubling that the IJ
assigned less weight to the sworn testimony of Pujols’s husband than to his prior unsworn
interview with Agent Reed. However, neither determination by the IJ was blatantly
unreasonable, and her ultimate decision was based on evidence beyond these two factors.
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monies paid to him in connection with the marriage. Additionally, Agent Reed testified
that his investigation had revealed that the couple married for immigration purposes only
– a fact that Pujols’s husband apparently admitted to Agent Reed during the investigation.
Petitioners fail to address most of these factors, and do not explain why the IJ was
not justified in relying on them in reaching his decision. Instead, Petitioners attempt to
support their claim by simply focusing on the portions of the evidence that were favorable
to them. While we recognize that some evidence was adduced in support of Petitioners’
claims, we are convinced that the IJ’s decision was based on substantial evidence. Even
if we were to decide that certain aspects of the IJ’s credibility determinations seemed
“troubling,”1 our deferential standard of review compels us to reject Petitioners’ first
argument. See Abdulrahman v. Ashcroft, 330 F.3d 587, 598 (3d Cir. 2003).
Second, Petitioners contend that decisions made by the IJ regarding the testimony
of witnesses at the hearing rendered the proceedings unfair and denied Petitioners due
process. We review de novo whether Petitioners’ due process rights were violated.
Abdulrahman, 330 F.3d at 595-96. It is well-settled that “aliens facing removal are
entitled to due process.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). We
have further noted that “[i]n the context of an immigration hearing, due process requires

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2Although it is clear from the record that Pujols’s mother-in-law did not actually
testify at the hearing, the Government points out that the IJ did include her name on a list
of witnesses listed to appear at the hearing. The record also indicates that she was present
at the start of the hearing.
3Petitioners cite to the following INA provision: “[T]he alien shall have a
reasonable opportunity to examine the evidence against the alien, to present evidence on
the alien’s own behalf, and to cross-examine witnesses presented by the Government . . .
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that ‘aliens threatened with deportation are provided the right to a full and fair hearing’
that allows them ‘a reasonable opportunity to present evidence’ on their behalf.”
Abdulrahman, 330 F.3d at 596 (quoting Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.
2001)).
Petitioners level two different due process claims. The first is based on
Petitioners’ assertion that the IJ refused to allow Pujols’s mother-in-law to testify at the
hearing. As Pujols lived with her husband and her mother-in-law upon entering this
country, we agree that her mother-in-law would have very likely presented highly relevant
testimony regarding the marital relationship between Pujols and her husband. Thus, a
decision by the IJ to prevent such testimony could raise due process concerns.
Petitioners, however, have failed to direct us to any portion of the administrative record
indicating that an attempt to offer such testimony was foreclosed by the IJ, neither does
our own review of the record reveal any evidence supporting this contention.2 In the
absence of such evidence, we cannot credit this claim.
Petitioners also complain about Agent Reed’s testimony, alleging that their due
process rights or their rights under the INA,3 or both, were violated by Agent Reed’s

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.” 8 U.S.C. § 1229a(b)(4)(B). It is unclear whether Petitioners are asserting a due
process claim based on this statute, or whether they are claiming individual violations of
their statutory and/or their due process rights. We conclude that their arguments fail,
regardless of which rights they seek to invoke.
4On cross-examination, Agent Reed was steadfast in his insistence that he had an
independent recollection of the facts to which he testified.
5Petitioners merely refer to a “statutory and regulatory procedural protection
against being subjected to a telephonic evidentiary hearing.” The cases that Petitioners do
cite in support of this argument involve situations where petitioners themselves
participate in or testify at hearings via telephone rather than in person, not where another
witness offers testimony by telephone.
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improper reliance on notes he made during his investigation related to this case, which
had occurred several years before the hearing, and the IJ’s allowing Agent Reed to testify
via telephone. We are not convinced that either of these aspects of Agent Reed’s
testimony amounts to a due process violation. Petitioners received advance notice that
Agent Reed would testify at the hearing. Although they did not obtain a copy of his
investigation notes until the day of the hearing, they had a full opportunity to question
him about his recollection of the case and about his use of the notes.4 Petitioners object to
the content of Agent Reed’s testimony, which was unfavorable to them, but they fail to
articulate how his testimony rendered the proceedings “unfair.” Moreover, they are
unable to cite to, and we are unable to find, any authority indicating that allowing a
witness to testify over the telephone is disfavored at an immigration hearing,5 let alone
that it constitutes a due process violation. Therefore, we reject both of Petitioners’ due
process arguments, as they are not supported by the record or existing law.

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6Although Petitioners did, at our direction, file a response to the Government’s
jurisdictional argument, the response reinforces our view that this argument is tied to their
due process claim and fails to present us with any basis for conducting a broader
examination of this issue in the case before us.
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And finally, Petitioners’ third argument addresses the application of the BIA’s
streamlining regulations, 8 C.F.R. § 3.1(e)(4)(I) (2002). Petitioners contend that the BIA
abused its discretion when it affirmed the IJ’s decision without issuing an opinion,
because it thereby compounded the due process violations alleged in Petitioners’ second
argument. The Government argues that we are without authority to review the BIA’s
decision to invoke its streamlining regulations. In light of the narrow manner in which
Petitioners have framed the issue before us in this case – focusing exclusively on their
contention that the BIA was required to issue a full, reasoned opinion because of the IJ’s
alleged failure to preserve Petitioners’ due process rights – we need not decide in the
abstract whether we generally have jurisdiction to review the BIA’s application of the
streamlining provisions. Instead, we find that we can easily dispose of the claims
articulated by Petitioners in this case, as they turn exclusively on our due process analysis
set forth above. Because we found no merit to Petitioners’ due process arguments after
reviewing them de novo, we conclude that their attack on the BIA’s decision to issue a
summary affirmance must fail.6
Accordingly, we will DENY the petition for review of the BIA’s decision.

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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell
Circuit Judge

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