Yan Yan Chen v. Gonzales

MEMORANDUM **

Ellen Yan Yan Chen Yu (“Chen”) petitions for review of two separate decisions of the Board of Immigration Appeals (“BIA”). In No. 02-71428, Chen petitions for review of the BIA’s summary affirmance of the decision of an Immigration Judge (“IJ”) finding her deportable but granting voluntary departure. In No. 05-71433, Chen petitions for review of the BIA’s denial of her second motion to reopen, which was based on ineffective assistance of counsel claims against her prior attorneys. We have jurisdiction pursuant to 8 U.S.C. § 1252 (a), and we deny in part and dismiss in part the first petition but grant the second.

Chen contends the BIA erred in affirming the IJ’s decision in four respects. 1 First, she argues the BIA mistakenly placed the burden on her to demonstrate that she did not participate in a fraudulent marriage. In light of the BIA’s affirmance of the IJ’s finding that Chen was not deportable for having procured a visa by fraud or for having failed to comply with the conditions of her status, we reject *437 this argument. Second, Chen claims the BIA erred in faffing to permit her to adjust her status based on her second marriage. However, Chen may not…

concurring in part and dissenting in part.

I concur in 02-71428. I respectfully dissent in 05-71433. “We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.”

*439 Chen obtained a K-l visa by marrying an American homosexual afflicted with AIDS. The INS denied her application for permanent resident status and initiated deportation. Chen’s husband died and she married another American. At the hearing, she claimed the dead husband beat, raped, and otherwise mistreated her. Although the IJ found Chen credible, this very charitable finding affected only whether she would get voluntary departure, not whether she would be deported. The IJ found Chen out of status because her marriage was fraudulent, and ordered her deportation. Chen appealed, but the BIA summarily affirmed the IJ.

Chen did not file this motion to reopen until years had elapsed and she had failed to depart. The BIA reasonably denied this “discretionary” and “disfavored” motion. 5 A Violence Against Women Act claim would have succeeded only if counsel preserved the IJ’s unexpectedly favorable…