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Severino v. Mukasey

December 3, 2008

RAMON JULIAN SEVERINO, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL FOR THE UNITED STATES, RESPONDENT.



SYLLABUS BY THE COURT

Petitioner Ramon Julian Severino petitions from a final order of removal entered in the Board of Immigration Appeals on August 27, 2007. An Immigration Judge found that Severino's status had been terminated by law when he failed to appear at a personal interview in connection with his petition to remove conditions on his status. Severino argues that his filing of a second petition to remove conditions extended his term of residency and entitles him to withholding of removal. For the following reasons, we deny the petition for review in part and dismiss in part.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued: September 25, 2008

Before: JACOBS, Chief Judge, WESLEY and HALL, Circuit Judges.

Ramon Julian Severino appeals from a final order of removal by the Board of Immigration Appeals (BIA). Severino entered this country illegally in 1995; he obtained lawful conditional permanent residency on the basis of his 1997 marriage to a citizen; he timely filed to remove the conditions within two years, as required by regulation; but he failed to appear with his wife at a 1999 personal interview, as the regulation also required--his wife having left him early in 1998. An immigration judge (IJ) ordered Severino removed in March, 2006, and the Board of Immigration Appeals (BIA) affirmed. In this petition, Severino argues (1) that he was eligible for cancellation of removal because he enjoyed the status of a lawful permanent resident; and (2) that the IJ denied Severino due process by placing the burden of proof on Severino rather than on the government. For the reasons stated in this opinion, we conclude that Severino's status was terminated by law in March, 1999, that he was therefore ineligible for cancellation of removal, and that the burden of proof rested on him in the proceedings before the immigration judge. We accordingly deny Severino's petition for review, except insofar as we lack jurisdiction over part of the petition, in which respect we dismiss.

BACKGROUND

Ramon Julian Severino, a citizen of the Dominican Republic, entered the United States illegally in September, 1995. He married Andrea Santa, an American citizen, on August 15, 1996, a marriage he claims was bona fide. Based on this marriage, Severino was granted conditional permanent resident status on March 20, 1997. The marriage soon broke down; Severino claims that Santa abruptly left their house and terminated all communication with him on January 24, 1998. The couple was divorced in April, 2000.

Severino's conditional permanent resident status required him to file a Form I-751 Petition to Remove Conditions on Residence within a ninety-day window immediately prior to the two-year anniversary of his obtaining status. 8 U.S.C. § 1186a(c)(1). He and his spouse were also required to attend a personal interview in connection with this petition. 8 U.S.C. § 1186a(c)(1). Severino filed a timely Form I-751 petition in February, 1999, and a personal interview was scheduled for September 30, 1999, but Severino and Santa failed to attend. By law, Severino's unexplained failure to attend the interview resulted in the termination of his permanent resident status as of March 20, 1999, the second anniversary of his lawful admission. 8 U.S.C. § 1186a(c)(2)(A). The United States Citizenship and Immigration Services (CIS) issued a decision on February 22, 2000, notifying Severino that his status had been terminated by reason of his failure to attend the scheduled interview.

Severino filed a second I-751 petition on March 21, 2001, together with a request for a waiver of the joint application requirement in light of his divorce. The CIS denied this second I-751 petition on August 15, 2003.

The CIS then served Severino with a Notice to Appear dated March 18, 2005, charging him with removability on the basis of the termination of his status, which the CIS unaccountably dated as having occurred when Severino's second I-751 petition was denied on August 15, 2003. In the ensuing proceeding before the IJ, Severino contested removability based on the termination of his status and requested cancellation of removal pursuant to 8 U.S.C. § 1229b.

By oral Order on March 24, 2006, the IJ denied Severino's application for cancellation of removal, determining that Severino's status was terminated in 2000 because of his failure to attend the personal interview in connection with his original I-751 petition. The IJ then determined that Severino had failed to sustain his burden in connection with his request for a waiver of the joint application requirement, and concluded that the CIS had properly denied his I-751 petition.*fn1 Finally, the IJ ordered Severino's removal to the Dominican Republic.

The BIA adopted and affirmed the ruling by per curiam Order dated August 27, 2007. The BIA was not persuaded that the IJ's findings of fact were clearly erroneous, or that the IJ had erred in finding that Severino had failed to sustain his burden of proof. Severino filed a timely petition for review with this Court.

DISCUSSION

When the BIA issues an opinion, that opinion becomes the basis for review. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). When--as here--the BIA adopts a decision of the IJ and supplements it, this Court reviews the IJ's decision as supplemented by the BIA. Id. Administrative findings of fact "are conclusive ...


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