10-2396-ag Boluk v. Holder UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

10-2396-ag
Boluk v. Holder
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Argued: April 11, 2011 Decided: June 7, 2011) 8
9
Docket No. 10-2396-ag 10
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NEDIM BOLUK, 14
15
Petitioner, 16
17
- v.- 18
19
ERIC H. HOLDER, JR., United States 20
Attorney General, 21
22
Respondent. 23
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Before: JACOBS, Chief Judge, LEVAL and KATZMANN, 27
Circuit Judges. 28
29
Petitioner Nedim Boluk seeks review of a final order of 30
removal, issued after a determination that he is ineligible 31
for a “hardship waiver” of the requirements for filing a 32
joint petition with his citizen spouse to lift the 33
conditions on his residency. See Immigration and 34
Nationality Act (“INA”) § 216(c)(4)(B), 8 U.S.C. 35
§ 1186a(c)(4)(B). Boluk argues on appeal that the agency 36
erred as a matter of law by placing upon him the burden of 37

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2
establishing that his qualifying marriage (which failed) was 1
entered in good faith; that the wrong standard was applied 2
for assessing eligibility for a hardship waiver; and that an 3
erroneous assessment was made in weighing the evidence. The 4
petition for review is denied. 5
GLENN T. TERK, Wethersfield, 6
Connecticut, for Petitioner. 7
8
SARAH VUONG, Trial Attorney (Emily 9
Anne Radford, Assistant 10
Director, on the brief), Office 11
of Immigration Litigation, for 12
Tony West, Assistant Attorney 13
General, Civil Division, U.S. 14
Department of Justice, 15
Washington, District of 16
Columbia, for Respondent. 17
18
DENNIS JACOBS, Chief Judge: 19
20
Petitioner Nedim Boluk, who became a conditional 21
permanent resident after marriage to a United States 22
citizen, sought a hardship waiver of the procedures for 23
lifting the conditions of his residency after his marriage 24
dissolved. The immigration judge and the Board of 25
Immigration Appeals (the “BIA”) denied relief. Boluk seeks 26
review of those decisions by this Court. 27
Ordinarily, the alien spouse and the citizen spouse 28
must jointly petition for removal of the conditions on the 29
alien spouse’s residency. However, a hardship waiver of the 30

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3
joint petition requirements is available if the marriage, 1
though entered in good faith, ends in divorce prior to the 2
point at which the alien must seek to lift the conditions on 3
his residency. Boluk argues on appeal that the immigration 4
judge and the BIA erred as a matter of law in placing upon 5
him the burden of proving eligibility for a hardship waiver, 6
in articulating the standard for demonstrating a good faith 7
marriage, and in weighing the evidence of good faith that 8
Boluk presented to the immigration judge. 9
We conclude that the allocation of the burden of proof 10
was proper, that the agency articulated the proper legal 11
standard for demonstrating a good faith marriage, and that 12
the agency properly determined that Boluk was ineligible for 13
the relief he sought. Accordingly, the petition for review 14
is denied. 15
BACKGROUND 16
We recite the facts underlying this petition for review 17
as recounted by Petitioner. In 1986, Boluk, a then-16-year- 18
old native and citizen of Turkey, traveled to Canada to 19
visit a relative. In Canada, he rented a boat that 20
accidentally crossed the border and landed him in the United 21
States “by mistake.” J.A. at 100. Boluk recalls being 22

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4
detained by immigration officials who “left [him] in some 1
motel,” where he remained for two days. J.A. at 101. He 2
then took a bus to New York, roomed with his brother in West 3
Haven, Connecticut, and began working at the Blue Sky Diner. 4
J.A. at 102-03. Also employed by the diner was Ms. Karen 5
Colangelo. J.A. at 79, 103, 106. 6
At first sight, Boluk “fe[lt] like [he was] in love 7
with” Ms. Colangelo. J.A. at 79. Six or seven months 8
later, they started dating. J.A. at 80. Boluk communicated 9
with Ms. Colangelo with his “little English,” hand gestures, 10
and the drawing of pictures. J.A. at 106. Boluk confided 11
his love for Ms. Colangelo, J.A. at 80, and knew she cared 12
because she told him she “like[d]” him and “love[d]” him. 13
J.A. at 80, 81. 14
In 1988, they married in Turkey. J.A. at 81. After 15
the wedding, the couple stayed in Turkey for about a month, 16
until Ms. Colangelo returned to Connecticut; Boluk stayed on 17
in Turkey for about a year as he had a “hard time” procuring 18
a visa. J.A. at 82. Upon Boluk’s return to the United 19
States in 1989 as a lawful conditional resident, J.A. at 20
143, Ms. Colangelo met him at the airport and was very happy 21
to see him. J.A. at 83-84. But a “couple of days later” 22

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5
Boluk realized Ms. Colangelo was “not happy,” and she 1
expressed resentment that he had remained so long in Turkey. 2
J.A. at 84. At this point, Boluk learned Ms. Colangelo was 3
using drugs; she sometimes “stayed [out] all night,” 4
sometimes never came home at all, and sometimes did not come 5
to work. They began to have “big arguments.” J.A. at 85, 6
86. Ms. Colangelo left Boluk in 1989, J.A. at 86-87, 93-94, 7
and he took up with a Turkish woman (with whom he has a 8
child who was born in the United States). J.A. at 115-16. 9
In 1994, Boluk filed an I-751 Petition with United 10
States Citizenship and Immigration Services (“USCIS”) to 11
remove the conditions of his residence. J.A. at 116-17. 12
Absent some specified ground of waiver, an I-751 Petition 13
must be signed by both spouses attesting to a bona fide 14
marriage. Boluk’s I-751 Petition was signed jointly by 15
himself and Ms. Colangelo, and it indicated that they were 16
living together notwithstanding that their relationship had 17
ended in 1989. J.A. at 119. Following submission of the 18
Petition, an interview was scheduled by USCIS. Ms. 19
Colangelo failed to appear. J.A. at 118. In 1998, the 20
(purportedly) joint petition was denied by USCIS. J.A. at 21
143. 22

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6
During the pendency of his I-751 Petition, Boluk had 1
filed for divorce in 1996. In 2002, his divorce became 2
final. J.A. at 118-19. That year, he again filed an I-751 3
Petition to remove the conditions of his residence, this 4
time requesting a waiver of the joint filing requirements on 5
the ground that his marriage, though ended in divorce, had 6
been entered in good faith. J.A. at 143. 7
In 2006, Boluk was served with a Notice to Appear for 8
removal proceedings, which charged him as an alien whose 9
conditional resident status had expired. J.A. at 184. In 10
2007, Boluk’s request for a waiver of the joint filing 11
requirement of the I-751 Petition was denied on the ground 12
that he failed to provide evidence to support his claim that 13
his marriage was entered into in good faith. J.A. at 144. 14
Boluk appeared before an immigration judge and conceded 15
removability, but requested relief in the form of review of 16
the USCIS decision denying his 2002 I-751 Petition to remove 17
the conditions on his residency. J.A. at 17-18. The 18
immigration judge held a hearing at which Boluk testified. 19
At this hearing, the immigration judge also received the 20
testimony and affidavits of two individuals who had worked 21
with Boluk, along with an affidavit of a third individual 22

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7
who had occasion to observe the relationship between Boluk 1
and Ms. Colangelo. After the hearing, the immigration judge 2
denied Boluk’s application for review of the USCIS decision 3
and ordered Boluk’s removal to Turkey. J.A. at 26. The 4
immigration judge ruled that, pursuant to INA 5
§ 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B), and its 6
implementing regulation, 8 C.F.R. § 1216.5(e)(2), Boluk had 7
the burden of establishing that his marriage was entered 8
into in good faith and that he failed to submit sufficient 9
evidence of his commitment to the marriage to sustain his 10
burden. J.A. at 24-26. 11
As the immigration judge observed, Boluk presented no 12
“documentary evidence of his commitment to his wife either 13
before or after he immigrated to the United States.” J.A. 14
at 24. The immigration judge cited facts that raised 15
“general questions” about the bona fides of the 16
relationship: Boluk was only sixteen when he met Ms. 17
Colangelo; they lived together only briefly; and Boluk “did 18
not really speak much English,” making it “very unclear to 19
the Court how [Boluk was] able to . . . effectively 20
communicate” with Ms. Colangelo. J.A. at 24, 25. Moreover, 21
the joint I-751 Petition submitted in 1994 presented a 22

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8
“serious issue” and cast “serious doubt on [Boluk’s] overall 1
credibility”; Boluk could not explain how this document came 2
to be filed when he and Ms. Colangelo were separated or why 3
the form indicated that they were living at the same 4
address. J.A. at 25. 5
Boluk’s timely appeal to the BIA argued that the 6
immigration judge misplaced the burden of proof and had 7
applied the wrong standard for assessing eligibility for a 8
hardship waiver. J.A. at 10-11. As to burden, Boluk 9
maintained that the statutory allocation is ambiguous and 10
therefore should have been construed in his favor. As to 11
the standard for assessing eligibility, Boluk argued (in a 12
nutshell) that the immigration judge should have focused his 13
inquiry on the circumstances leading up to the marriage and 14
should not have considered whether Boluk was a committed 15
husband, or the unfortunate course of the marriage after the 16
wedding. 17
The BIA dismissed Boluk’s appeal. In considering the 18
burden of proof issue, the BIA relied on In re Mendes, 20 I. 19
& N. Dec. 833 (BIA 1994), which ruled that “Congress chose 20
to shift the burden of proof onto the alien to show that 21
even though the marriage failed, it was entered into in good 22

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9
faith.” Id. at 838. The BIA agreed with the immigration 1
judge that Boluk failed to sustain his burden of proof. 2
J.A. at 4. 3
As to the standard for assessing eligibility for a 4
hardship waiver, the BIA framed the “central question” as 5
“whether the bride and groom intended to establish a life 6
together at the time they were married,” and reasoned that 7
the level of commitment to the marriage thereafter had 8
bearing on that question. J.A. at 4. As support, the BIA 9
cited the regulation governing applications for waiver of 10
the joint filing requirement based upon an alien’s claim 11
that a good faith marriage terminated in divorce. 8 C.F.R. 12
§ 1216.5(e)(2). 13
Boluk’s timely petition for review renews his arguments 14
that the immigration judge erred in placing on him the 15
burden of establishing a good faith marriage and in 16
articulating the standard for demonstrating a good faith 17
marriage. Boluk also maintains that the immigration judge 18
erred in weighing the evidence of good faith he presented. 19

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DISCUSSION 1
2
I 3
4
“Where, as here, the BIA adopts the [immigration 5
judge’s] reasoning and offers additional commentary, we 6
review the decision of the [immigration judge] as 7
supplemented by the BIA.” Mahmood v. Holder, 570 F.3d 466, 8
469 (2d Cir. 2009) (internal quotation marks omitted). We 9
“grant Chevron deference to the [BIA’s] construction of the 10
INA.” Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir. 2001); see 11
also Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 12
467 U.S. 837, 842 (1984). “Under the Chevron standard, we 13
adhere to Congress’ purpose where the INA clearly speaks to 14
the point in question,” and we examine de novo questions of 15
law decided by the immigration judge or the BIA. Kuhali, 16
266 F.3d at 102. When the INA “is silent or ambiguous, then 17
we must defer to any reasonable interpretation of the 18
statute adopted by the [BIA] as the entity charged by 19
Congress with the statute’s enforcement.” Id. 20
II 21
This Court retains jurisdiction to review Boluk’s 22
challenge to the allocation of the burden of proof because 23
it is a question of law whether, in a particular 24

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circumstance, an alien bears the burden of establishing 1
eligibility for a hardship waiver. 8 U.S.C. 2
§ 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of 3
Justice, 471 F.3d 315, 330-31 (2d Cir. 2006). The precise 4
issue presented here is the proper allocation of burden when 5
the relationship through which an alien’s conditional 6
residency was obtained has ended in divorce. 7
Boluk contends on appeal that the INA is ambiguous as 8
to which party bears the burden of proof on the issue of 9
whether an alien’s conditional status should be terminated 10
for failure to establish a good faith marriage, and that 11
this statutory ambiguity should have been resolved in his 12
favor. We disagree. The statutory provision at issue is 13
neither “silent [n]or ambiguous with respect to the specific 14
issue” presented by this appeal. Immigration & 15
Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 424 16
(1999) (internal quotation marks omitted). The statutory 17
wording requires that “the alien demonstrate[] that . . . 18
the qualifying marriage was entered into in good faith by 19
the alien spouse, but the marriage has been terminated.” 8 20
U.S.C. § 1186a(c)(4)(B) (emphasis added). Because “the 21
intent of Congress is clear, that is the end of the matter; 22

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for the court, as well as the agency, must give effect to 1
the unambiguously expressed intent of Congress.” Chevron, 2
467 U.S. at 842-43. The immigration judge and the BIA 3
committed no error of law in allocating the burden. 4
This allocation of burden represents a shift. When a 5
conditional resident petitions jointly with a citizen spouse 6
to remove the conditions on his residency and the Attorney 7
General determines that petition adversely, the conditional 8
resident may request review of that determination in a 9
removal proceeding. In such a proceeding, the burden of 10
proof is on the government “to establish, by a preponderance 11
of the evidence, that the facts and information [contained 12
in the petition] are not true with respect to the qualifying 13
marriage.” 8 U.S.C. § 1186a(c)(3)(D). However, if an alien 14
(such as Boluk) “fails to meet the requirements for timely 15
filing a joint petition, or for jointly appearing for a 16
personal interview, the alien may seek a waiver of these 17
requirements,” in which event the alien bears the “burden of 18
establishing eligibility for a removal of the conditional 19
status.” Hammad v. Holder, 603 F.3d 536, 539, 543 (9th Cir. 20
2010); see also Hijazi v. Dep’t of Homeland Sec., 239 F. 21
App’x 629, 631 (2d Cir. 2007) (summary order) (“While the 22

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1 See, e.g., Roos v. U.S. Attorney Gen., 167 F. App’x
752, 755 (11th Cir. 2006) (unpublished disposition); Gaur v.
Gonzalez, 124 F. App’x 738, 741-42 (3d Cir. 2005)
(unpublished disposition).
13
[Department of Homeland Security] had the burden to show 1
that [the petitioner] failed to meet the requirements for 2
removal of conditions in the face of a jointly filed 3
application, it was petitioner who bore the burden of 4
proving his eligibility for a good-faith waiver of the joint 5
filing requirement.”). This shift in burden helps to ensure 6
that the marriage that provided the basis for the alien’s 7
conditional residence in the first place “was not a sham 8
marriage” and that the marriage “had terminated for other 9
reasons.” Krazoun v. Ashcroft, 350 F.3d 208, 209 (1st Cir. 10
2003); accord Ibrahimi v. Holder, 566 F.3d 758, 760 (8th 11
Cir. 2009) (requiring alien to establish a qualifying 12
marriage entered in good faith). (Unpublished dispositions 13
in other circuit courts of appeals are also in accord. 1
) 14
The BIA agrees in a published opinion. Where a citizen 15
spouse had withdrawn his support for a joint petition, the 16
BIA reasoned that placing the burden of proof on the alien 17
to demonstrate that the marriage was nonetheless entered 18
into in good faith “is consistent with the statutory 19
structure and intent.” In re Mendes, 20 I. & N. Dec. at 20

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838. We conclude that the same is true when no valid joint 1
petition is ever filed. Divorce and failure to file jointly 2
may “not necessarily demonstrate that the marriage was 3
entered into in bad faith, . . . . [but they are] bound to 4
raise the question as to whether that is the case.” Id. 5
And as compared with the government, the alien is in the 6
better position to answer that question. Cf. Campbell v. 7
United States, 365 U.S. 85, 96 (1961) (stating “the ordinary 8
rule, based on considerations of fairness, does not place 9
the burden upon a litigant of establishing facts peculiarly 10
within the knowledge of his adversary”); United States v. 11
Cont’l Ins. Co., 776 F.2d 962, 964 (11th Cir. 1985) 12
(adhering “to the common law guide that the party in the 13
best position to present the requisite evidence should bear 14
the burden of proof”); Miles Metal Corp. v. M. S. Havjo, 494 15
F.2d 563, 565 (2d Cir. 1974) (allocating burden of proof to 16
party that, “in general is in a better position” to come 17
forward with evidence). 18
III 19
We have jurisdiction to review the legal question of 20
whether the immigration judge and the BIA “applied an 21
erroneous legal standard in making a discretionary 22

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determination.” Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 1
2007). Accordingly, we have jurisdiction to review Boluk’s 2
contention that the immigration judge and the BIA erred by 3
considering whether Boluk was a committed husband and by 4
relying upon the course of the marriage subsequent to the 5
wedding in ascertaining whether it was a good faith union at 6
the outset. See Ibrahimi, 566 F.3d at 763. 7
As Boluk asserts, the “central issue is whether the 8
couple intended to establish a life together at the time 9
they were married.” Yohannes v. Holder, 585 F.3d 402, 405 10
(8th Cir. 2009) (internal quotation marks omitted); see also 11
Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). 12
However, the INA’s implementing regulations specifically 13
provide that the immigration judge may “consider evidence 14
relating to the amount of commitment by both parties to the 15
marital relationship” in assessing good faith: 16
In considering whether an alien entered into a 17
qualifying marriage in good faith, the director 18
shall consider evidence relating to the amount of 19
commitment by both parties to the marital 20
relationship. Such evidence may include-- 21
22
(i) Documentation relating to the degree to 23
which the financial assets and liabilities of 24
the parties were combined; 25
26
(ii) Documentation concerning the length of 27
time during which the parties cohabitated 28

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after the marriage and after the alien 1
obtained permanent residence; 2
3
(iii) Birth certificates of children born to 4
the marriage; and 5
6
(iv) Other evidence deemed pertinent by the 7
director. 8
9
8 C.F.R. § 1216.5(e)(2); see also In re Laureano, 19 I. & N. 10
Dec. 1, 2-3 (BIA 1983) (“The central question is whether the 11
bride and groom intended to establish a life together at the 12
time they were married.”). The BIA has held that “[t]he 13
conduct of the parties after marriage is relevant to their 14
intent at the time of marriage.” In re Laureano, 19 I. & N. 15
Dec. at 3. The BIA’s determination that the INA allows for 16
consideration of the course of a relationship after a 17
wedding in order to ascertain an alien’s intent at the time 18
he entered his marriage is entitled to deference. Kuhali, 19
266 F.3d at 102. 20
It was therefore proper for the immigration judge to 21
attach significance to the course of the marriage post- 22
wedding: Boluk never supported Ms. Colangelo financially; 23
they had no joint bank account; they did not pay bills 24
together; they signed no joint lease; and they had no 25
children. J.A. at 95, 110. They separated soon after they 26
had the opportunity to live together, and were then 27

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divorced. Cf. In re Velarde-Pacheco, 23 I. & N. Dec. 253, 1
256 (BIA 2002) (concluding alien “submitted clear and 2
convincing evidence that his marriage is bona fide” when 3
alien submitted, among other things, his marriage 4
certificate, his child’s birth certificate, and 5
documentation demonstrating that he had known and lived with 6
his wife for years). If the immigration judge had failed to 7
consider the course of the marriage, the record would 8
consist of little more than the “bare fact of getting 9
married,” which reveals nothing regarding the “motivation 10
for marriage.” Sharma v. Holder, 633 F.3d 865, 873 (9th 11
Cir. 2011) (internal quotation marks and emphasis omitted). 12
The legal standard employed was thus proper and, 13
because our review “is limited to this legal determination 14
and does not extend to the underlying factual 15
determination,” we do not “reevaluate the relative strength 16
of the evidence” presented to the immigration judge. 17
Yohannes, 585 F.3d at 405 (internal quotation marks 18
omitted); see also Ibrahimi, 566 F.3d at 764 (determining 19
that jurisdiction exists only to evaluate a “predicate legal 20
question” in a challenge to an immigration judge’s finding 21
that a marriage was not entered in good faith (internal 22

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quotation marks omitted)). 1
IV 2
Finally, Boluk challenges the immigration judge’s 3
failure to give “any weight” to the fact that Ms. Colangelo 4
traveled to Turkey to marry him. Pet’r Br. at 8. The 5
amount of weight to be accorded any particular fact raises 6
no question of law and is accordingly not within this 7
Court’s jurisdiction to review the agency’s determination. 8
8 U.S.C. § 1252(a)(2)(D); see Contreras-Salinas v. Holder, 9
585 F.3d 710, 713-15 (2d Cir. 2009). 10
CONCLUSION 11
For the foregoing reasons, we deny Boluk’s petition for 12
review. 13

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