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Nedim Boluk v. Eric H. Holder

June 7, 2011

NEDIM BOLUK, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



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

10-2396-ag

Boluk v. Holder

Argued: April 11, 2011

Before: JACOBS, Chief Judge, LEVAL and KATZMANN, Circuit Judges.
Petitioner Nedim Boluk seeks review of a final order of removal, issued after a determination that he is ineligible for a "hardship waiver" of the requirements for filing a joint petition with his citizen spouse to lift the conditions on his residency. See Immigration and Nationality Act ("INA") § 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B). Boluk argues on appeal that the agency erred as a matter of law by placing upon him the burden of establishing that his qualifying marriage (which failed) was entered in good faith; that the wrong standard was applied for assessing eligibility for a hardship waiver; and that an erroneous assessment was made in weighing the evidence. The petition for review is denied.
Petitioner Nedim Boluk, who became a conditional permanent resident after marriage to a United States citizen, sought a hardship waiver of the procedures for lifting the conditions of his residency after his marriage dissolved. The immigration judge and the Board of Immigration Appeals (the "BIA") denied relief. Boluk seeks review of those decisions by this Court.
Ordinarily, the alien spouse and the citizen spouse must jointly petition for removal of the conditions on the alien spouse's residency. However, a hardship waiver of the joint petition requirements is available if the marriage, though entered in good faith, ends in divorce prior to the point at which the alien must seek to lift the conditions on his residency. Boluk argues on appeal that the immigration judge and the BIA erred as a matter of law in placing upon him the burden of proving eligibility for a hardship waiver, in articulating the standard for demonstrating a good faith marriage, and in weighing the evidence of good faith that Boluk presented to the immigration judge.

We conclude that the allocation of the burden of proof was proper, that the agency articulated the proper legal standard for demonstrating a good faith marriage, and that the agency properly determined that Boluk was ineligible for the relief he sought. Accordingly, the petition for review is denied.

BACKGROUND

We recite the facts underlying this petition for review as recounted by Petitioner. In 1986, Boluk, a then-16-year- old native and citizen of Turkey, traveled to Canada to visit a relative. In Canada, he rented a boat that accidentally crossed the border and landed him in the United States "by mistake." J.A. at 100. Boluk recalls being detained by immigration officials who "left [him] in some motel," where he remained for two days. J.A. at 101. He then took a bus to New York, roomed with his brother in West Haven, Connecticut, and began working at the Blue Sky Diner. J.A. at 102-03. Also employed by the diner was Ms. Karen Colangelo. J.A. at 79, 103, 106.

At first sight, Boluk "fe[lt] like [he was] in love with" Ms. Colangelo. J.A. at 79. Six or seven months later, they started dating. J.A. at 80. Boluk communicated with Ms. Colangelo with his "little English," hand gestures, and the drawing of pictures. J.A. at 106. Boluk confided his love for Ms. Colangelo, J.A. at 80, and knew she cared because she told him she "like[d]" him and "love[d]" him.

J.A. at 80, 81.

In 1988, they married in Turkey. J.A. at 81. After the wedding, the couple stayed in Turkey for about a month, until Ms. Colangelo returned to Connecticut; Boluk stayed on in Turkey for about a year as he had a "hard time" procuring a visa. J.A. at 82. Upon Boluk's return to the United States in 1989 as a lawful conditional resident, J.A. at 143, Ms. Colangelo met him at the airport and was very happy to see him. J.A. at 83-84. But a "couple of days later" Boluk realized Ms. Colangelo was "not happy," and she expressed resentment that he had remained so long in Turkey.

J.A. at 84. At this point, Boluk learned Ms. Colangelo was using drugs; she sometimes "stayed [out] all night," sometimes never came home at all, and sometimes did not come to work. They began to have "big arguments." J.A. at 85, 86. Ms. Colangelo left Boluk in 1989, J.A. at 86-87, 93-94, and he took up with a Turkish woman (with whom he has a child who was born in the United States). J.A. at 115-16.

In 1994, Boluk filed an I-751 Petition with United States Citizenship and Immigration Services ("USCIS") to remove the conditions of his residence. J.A. at 116-17.

Absent some specified ground of waiver, an I-751 Petition must be signed by both spouses attesting to a bona fide marriage. Boluk's I-751 Petition was signed jointly by himself and Ms. Colangelo, and it indicated that they were living together notwithstanding that their relationship had ended in 1989. J.A. at 119. Following submission of the Petition, an interview was scheduled by USCIS. Ms. Colangelo ...


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