April 27, 2016
for Review of an Order of the Board of Immigration Appeals.
Flaum, Manion, and Williams, Circuit Judges.
WILLIAMS, CIRCUIT JUDGE.
case involves the application of an exemption in the
immigration laws for an alien seeking to obtain unconditional
lawful permanent resident status as a result of her marriage
to a U.S. citizen. Vera Putro, a citizen of Latvia, married a
U.S. citizen in 2004 and based on that marriage gained
conditional permanent residency. Her residency did not become
unconditional, however, because her husband passed away
before they could petition jointly to remove the conditions.
Putro petitioned on her own to have the conditions removed.
U.S. Citizenship and Immigration Services construed the
petition as a request for a discretionary waiver of the
joint-petition requirement, denied the waiver, and ordered
Putro removed. But in fact Putro did not need a waiver
because her husband's death during the conditional period
exempted her from the joint-filing requirement. In mistakenly
evaluating her petition as a request for a waiver, the agency
erroneously placed on Putro the burden of proving that the
marriage was bona fide. So we grant the petition.
first entered the U.S. on a 4-month, foreign-exchange student
visa in 1999 and overstayed. In November 2004 she married
Michael Zalesky, a U.S. citizen. Putro was granted
conditional legal permanent residence ("LPR")
status as the spouse of a U.S. citizen in July 2006,
see 8 U.S.C. § 1186a(1); 8 C.F.R. § 216.1.
months later, in November, Zalesky died.
untimely death complicated Putro's immigration status. To
gain unconditional LPR status, Putro and Zalesky had to
jointly petition the agency for removal of the conditions
within the 90-day period before the second anniversary of her
obtaining conditional permanent residency (i.e., between
mid-April and mid-July of 2008). See 8 U.S.C. §
1186(c)(1)(A), (d)(2); 8 C.F.R. § 216.4(a)(1). Of course
filing a joint petition was no longer possible, so in June
2008 Putro filed a Form I-751 Petition to Remove Conditions
on Residence, checking the box specifying that she sought a
waiver of the joint-filing requirement because her spouse had
agency denied Putro's petition, stating that it had
"reason to believe" that she had committed marriage
fraud by marrying Zalesky. The agency construed Putro's
petition as a request for a waiver of the joint-filing
requirement available to noncitizens whose marriages
terminate in divorce or annulment. This waiver, according to
the relevant federal statute, is available to a noncitizen if
she can demonstrate that she entered marriage in good faith
but that the marriage was "terminated (other than
through the death of the spouse)." See 8 U.S.C.
§ 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii). In
denying Putro's petition, the agency concluded that she
failed to refute evidence in her file reflecting that her
marriage to Zalesky was a sham-primarily a report that law
enforcement prepared after investigating Zalesky's death.
The agency terminated Putro's status as a conditional
permanent resident and issued a Notice to Appear charging her
with removability, see 8 U.S.C. §
removal proceedings an immigration judge advised Putro that
she had the right to renew her request for the waiver before
the court. He allowed her to present evidence and reminded
her that she had the burden of proving that the marriage was
and several witnesses testified in support of her petition.
Putro testified that she met Zalesky in January of 2004 and
married him in November 2004. Putro said that their first
year of marriage had gone well, but that Zalesky's drug
problems soured their relationship. Zalesky began lying to
her and sometimes stayed away from their home for days at a
time. In the summer of 2006, around the time her conditional
status finally came through, they separated. In November 2006
Zalesky died of a drug overdose in his parents' basement.
Putro's mother, sister, and several friends all testified
to visiting the couple in their home or meeting them at
government called two investigative agents and Zalesky's
parents to testify. According to the agents, during the
investigation following Zalesky's death they had been
told by Zalesky's family and Zalesky's friend Jeffrey
Armstrong that Zalesky had been in an arranged marriage with
a Russian woman and that he was paid to marry her in exchange
for citizenship. Putro's counsel repeatedly raised
hearsay objections to the agents' testimony regarding
Armstrong's statements (Armstrong never testified because
Putro's counsel was unable to serve him, despite the IJ
having prepared a subpoena for his appearance). Zalesky's
parents did testify, but both swore that they had no
knowledge of their son being in an arranged marriage and no
memory of telling either investigator that their son was in
an arranged marriage.
denied Putro's application for the waiver of the
joint-filing requirement and concluded that she was
removable. The IJ found that Putro had failed to establish by
a preponderance of the evidence that she and Zalesky had a
bona fide marriage. Her testimony and that of her witnesses,
he said, was "unpersuasive." The government, in
contrast, had presented "reliable" evidence that
family members and Armstrong had told investigators that the
marriage was a fraud.
appealed to the Board of Immigration Appeals, but it upheld
the IJ's ruling and dismissed her appeal. "[E]ven
assuming the credibility of the respondent and all testifying
witnesses, " the Board explained, she did not meet her
burden of proving that she entered her marriage in good
faith. The Board agreed with the IJ that the testimony of
Putro and her witnesses was vague, that it did not
sufficiently reflect a shared life, and that Putro did not
adequately rebut the government's evidence that the
marriage was a sham. Acknowledging that Zalesky's parents
had recanted their statements to investigators, the Board
nevertheless found that the IJ properly relied on the
investigators' testimony and reports. The Board also
rejected Putro's due-process challenge to the handling of
Armstrong's evidence: even though Armstrong did not
appear in court for cross-examination, Putro was able to
cross-examine both agents about their conversations with
Armstrong as well as Zalesky's parents about their
statements to authorities that the marriage was arranged.
petition for review, Putro argued that the IJ had misapplied
the standard of proof, and at oral argument we ordered the
parties to submit supplemental briefing on how this case is
affected by the decision in Matter of Rose, and