John Rendon v. Attorney General of the United States

DLD-145 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3110
___________
JOHN RENDON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A74-901-113)
Immigration Judge: Honorable Frederic G. Leeds
_______________________________________
Submitted on Respondent’s Motion for Summary Action Under
3rd Cir. LAR 27.4 and Chapter 10.6 of the Court’s Internal Operating Procedures
March 11, 2010
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion Filed: March 16, 2010)
_________
OPINION
_________
PER CURIAM
John Rendon petitions for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. For the following reasons, we will deny the petition.

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I.
Rendon is a citizen of Colombia who entered the United States without inspection
in 1993. In November 1995, he married Gaty Ramos, a United States citizen (although he
now disputes the legal validity of the marriage). As a result, he obtained conditional
permanent resident status following an interview with the then-Immigration and
Naturalization Service (“INS”).
Rendon later applied to lift the conditions on his status, and he and Ramos
appeared for a second interview toward that end in November 2000. Both appeared for a
morning session, but only Rendon returned in the afternoon. After he did, an INS officer
told him that Ramos had been married five times and was already married to another man
when Rendon married her. Rendon then gave a sworn statement, in which he admitted
that: (1) a third party arranged the marriage for immigration purposes in exchange for
$5,000; (2) he and Ramos never lived together as husband and wife and he did not intend
to do so at the time he married her; (3) he and Ramos had studied for the immigration
interview the night before; and (4) he paid Ramos $500 to appear for the interview. (A.R.
184-86.) Rendon and Ramos ultimately divorced in May 2001.
Thereafter, the INS denied Rendon’s application and terminated his conditional
permanent resident status. The Government filed a Notice to Appear charging Rendon as
removable: (1) under 8 U.S.C. § 1227(a)(1)(d)(i) because his residency status had been
terminated; and (2) under 8 U.S.C. § 1227(a)(1)(A) because he is inadmissible under 8

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This provision gives the Attorney General the discretion to cancel an alien’s removal if1
the alien satisfies four threshold statutory requirements, including that the alien has been a
“person of good moral character” during at least 10 years of residence in the United
States and that the alien’s removal “would result in exceptional and extremely unusual
hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1).
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U.S.C. § 1182(a)(6)(C)(i) for having procured that status by fraud or willful
misrepresentation. Before the Immigration Judge (“IJ”), Rendon admitted that he is a
citizen of Colombia and that his residence status had been terminated, but otherwise
denied the charges. He also applied for cancellation of removal under 8 U.S.C. §
1229b(b) on the grounds that his removal would result in hardship for his United States1
citizen daughter (by another relation), who is suffering from speech-related problems.
At his hearing, Rendon denied most of the substance of his prior statement (though
he admitted paying Ramos $500 to attend the interview) and testified that he gave the
statement under duress because INS officers threatened to send him to jail if he did not
admit that the marriage had been arranged. (A.R. 156-59.) Contrary to his statement, he
testified that he met Ramos at a discotheque and married her out of love, though the
couple lived together for only six months and he ultimately obtained a divorce on the
grounds of abandonment.
The IJ, however, found that the marriage had been fraudulent and sustained the
charges of removal. He relied on Rendon’s prior statement but, acknowledging Rendon’s
assertion that he made it under duress, relied also on Rendon’s testimony about other
events that he found inconsistent with Rendon’s claim that he divorced Ramos because

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We review the decisions of both the IJ and the BIA in this case because the BIA both2
affirmed the IJ’s rulings and summarized his reasoning while providing some of its own.
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).
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she had abandoned him. The IJ also denied Rendon’s application for cancellation of
removal. The IJ found that removal would result in the requisite hardship to Rendon’s
daughter, but concluded that (1) Rendon was statutorily ineligible for cancellation
because his fraudulent marriage precluded a finding that he was a person of “good moral
character,” 8 U.S.C. § 1229b(b)(1)(B), and (2) that issue aside, he would deny the
application in the exercise of his discretion, in part because of the serious nature of the
fraud and because Rendon’s daughter was doing well. The BIA agreed with the IJ on
both points and dismissed his appeal. Rendon petitions for review.2
II.
Rendon challenges only the denial of his application for cancellation of removal.
After he filed his brief, the Government filed a motion for summary action, arguing that
the BIA’s denial of cancellation in the exercise of its discretion is sufficient to support its
ruling and that we lack jurisdiction to review that discretionary decision under 8 U.S.C. §
1252(a)(2)(B)(i). We agree that “[t]his Court generally lacks jurisdiction to review
discretionary decisions made under § 1229b regarding cancellation of removal.”
Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005). We retain jurisdiction,
however, to review “constitutional claims or questions of law.” Id. (citing 8 U.S.C. §
1252(a)(2)(D)). We do so de novo, subject to established principles of deference on

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Rendon raised these arguments in his brief only as challenges to the BIA’s conclusion3
that he was statutorily ineligible for cancellation because he was not a “person of good
moral character,” not as challenges to the BIA’s overall exercise of discretion. He did not
assert them as a challenge to the BIA’s exercise of discretion as well until his response to
the Government’s motion. Thus, as the Government argues, we could deem that
challenge waived. See Hoxha v. Holder, 559 F.3d 157, 162-63 (3d Cir. 2009). Because
Rendon raised the substance of these arguments in his opening brief, however, we will
address them on the merits.
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agency review. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir. 2009). We conclude
that Rendon has raised two issues that we have jurisdiction to review and a third that
requires discussion. Because these arguments lack merit and do not present a substantial
question, however, we will grant the Government’s motion and deny Rendon’s petition.
See 3rd Cir. LAR 27.4 (2008); 3rd Cir. IOP Ch. 10.6.
Rendon argues that the BIA committed both legal and constitutional error in
finding that his marriage was fraudulent, and that it thus erred in relying on that factor in
exercising its discretion to deny his application. First, Rendon argues that, because3
Ramos was already married when he married her, his marriage was void ab initio and had
no legal effect. Thus, he reasons, he cannot be found to have entered into a fraudulent
marriage if he cannot legally be deemed to have entered into a marriage at all. We are not
persuaded. The IJ rejected this argument on the grounds that Rendon could still be
deemed to have committed fraud whether his marriage turned out to be legally valid or
not (IJ Dec. at 4), and we agree. The legally relevant factor in this case is the fraud, not
the validity of the marriage that was the subject of the fraud. Cf. Onyeme v. INS, 146
F.3d 227, 230, 234-35 (4th Cir. 1998) (recognizing that basis for deportation was alien’s

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The sole authority on which Rendon relies held merely that an alien’s visa was void4
because he obtained it by marrying a United States citizen after he already had married
someone else. See Lozoya-Zarote v. INS, 3 F.3d 437 (Table), No. 92-5217, 1993 WL
347081, at *2 (5th Cir. Aug. 17, 1993). That decision is inapposite.
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misrepresentation about his marriage, not the validity of his marriage).4
Second, Rendon argues that the IJ deprived him of due process because it was
“fundamentally unfair” for the IJ to rely on his prior statement. That is so, he argues,
because he made the statement under duress and the Government did not produce the
officer who took the statement for cross-examination at the hearing. The Government
argues that Rendon was not entitled to due process given the discretionary nature of the
relief he sought, but we need not reach that issue because the substance of Rendon’s
argument lacks merit.
Rendon does not frame this argument in terms of the admissibility of his statement,
but we have recognized in that context that whether IJs may rely on particular evidence
depends on “‘whether the evidence is probative and whether its use is fundamentally fair
so as not to deprive the alien of due process of law.’” Ezeagwuna v. Ashcroft, 325 F.3d
396, 405 (3d Cir. 2003) (citation omitted). We also have recognized that due process
requires “a meaningful opportunity to be heard” and a “reasonable opportunity to present
evidence.” Jarbough v. Att’y Gen., 483 F.3d 184, 190, 192 (3d Cir. 2007).
The IJ’s reliance on Rendon’s statement did not deprive him of these protections.
Rendon’s prior statement clearly was probative, and the IJ himself solicited and
considered Rendon’s explanation for the statement. Moreover, although the officer who

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We have held as a matter of substantial evidence that IJs may not rely exclusively on5
certain immigration interviews in finding an alien not credible, particularly where the
circumstances of the interview are unclear or there were apparent language difficulties.
See, e.g., Korytnyuk v. Att’y Gen., 396 F.3d 272, 289-90 & n.22 (3d Cir. 2005). Rendon
has not invoked this line of authority or otherwise argued that the IJ’s conclusion
regarding his marriage is not supported by substantial evidence (and we likely would lack
jurisdiction to review that argument if he had). Moreover, the concerns underlying those
decisions do not appear to be present in this case, and the IJ did not rely exclusively on
Rendon’s prior statement in finding his marriage fraudulent.
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took the statement was not available for cross-examination, the statement was Rendon’s
own, not the officer’s, and Rendon was permitted to explain the circumstances under
which he gave it. Rendon cites no authority suggesting that these circumstances deprived
him of due process, and we are aware of none.5
Finally, Rendon argues that the BIA erred in weighing the equities because it
failed to “fully consider” the hardships his daughter will face if he is removed. The BIA
did not specifically mention those hardships. The IJ did so, however, and concluded on
balance that they did not warrant cancellation of removal as matter of discretion. (IJ Dec.
at 12-14.) The BIA declined to disturb that ruling. (BIA Dec. at 2.) To the extent that
Rendon’s brief might be read to argue that the BIA gave these hardships inadequate
weight, we lack jurisdiction to review that argument. See Cospito v. Att’y Gen., 539 F.3d
166, 170 (3d Cir. 2008); Jarbough, 483 F.3d at 189.
Accordingly, we will deny the petition for review.

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