Arnold Gomez v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLD GOMEZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-74778
Agency No. A044-945-797
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2010**
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
Although the INS erroneously referenced INA § 216(b), 8 U.S.C.
§ 1186a(b), instead of INA § 216(c), 8 U.S.C. § 1186a(c), in denying Gomez’s
application for a waiver from the requirement that his spouse submit a joint
FILED
FEB 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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petition, the IJ did not err in construing the INS’s denial as a determination under 8
U.S.C. § 1186a(c)(4)(B). Gomez filed his application under 8 U.S.C.
§ 1186a(c)(4)(B), and the INS analyzed the waiver under that section (concluding
that the marriage was not entered into in good faith, as required to be eligible for
the waiver). Moreover, 8 U.S.C. § 1186a(b) was inapplicable by its terms, because
the Attorney General did not terminate Gomez’s permanent resident status before
the second anniversary of Gomez’s obtaining such status.
The IJ did not err in holding that Gomez’s conditional residency status had
been terminated. See 8 U.S.C. § 1186a(c)(2). Gomez’s conditional residency
status had already terminated for failure to file jointly for removal of the condition
within the applicable two-year time period. Moreover, Gomez conceded
removability at his hearing and stated the proceedings were to review removal of
the condition.
Substantial evidence supports the IJ’s denial of Gomez’s application for
waiver on the basis that his marriage was not entered into in good faith. See
Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). The IJ identified
numerous contradictions in the testimony, including whether the marriage had been
consummated, the existence of shared expenses and living arrangements, and how
Gomez and his wife met.

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Finally, the IJ did not apply the wrong legal standard in making the good
faith determination. A couple’s actions after marriage may “bear on the subjective
intent of the parties at the time they were married.” Oropeza-Wong v. Gonzales,
406 F.3d 1135, 1148 (9th Cir. 2005).
PETITION DENIED.

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