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Vidinski v. Lynch

United States Court of Appeals, Seventh Circuit

November 1, 2016

Kiril Hristov Vidinski, Petitioner,
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued October 30, 2014

         Petitions for Review of Dedsions of the Board of Immigration Appeals. No. A096-533-945

          Before Williams and Hamilton, Circuit Judges.[1]

          Hamilton, Circuit Judge.

         Petitioner Kiril Vidinski is a native of Bulgaria. He entered the United States as a visitor in 1998 but overstayed his visa. He married a United States citizen, Constance Literski, in 2002, and in 2005 he and Ms. Li-terski filed petitions seeking legal permanent resident status for him. Before those petitions were resolved, Ms. Literski told an investigator for Immigration and Customs Enforcement (ICE) that the marriage had been a sham to obtain immigration benefits for Vidinski (and money for her). Removal proceedings resulted in a final order to remove Vidinski, and the Board of Immigration Appeals dismissed his appeal and later denied his motion to reopen proceedings based on ineffective assistance of counsel. He now seeks judicial review, arguing primarily that he was entitled to cross-examine Ms. Literski, whose affidavit was critical to the marriage fraud issue. We dismiss in part and deny the remainder of the petitions on their merits.

         There is no doubt that Vidinski is removable for having overstayed his 1998 visa. Also, the Board denied his request for cancellation of removal based on "exceptional and extremely unusual hardship" to family members. See 8 U.S.C. § 1229b(b)(1)(D). That is a discretionary decision that we have no jurisdiction to review unless it involves constitutional claims or questions of law, Stepanovic v. Filip, 554 F.3d 673, 678 (7th Cir. 2009), and Vidinski presents no such claims or questions. To the extent Vidinski seeks review of the Board's denial of his hardship request, we dismiss for lack of jurisdiction.

         We do have jurisdiction to consider the finding by the immigration judge, affirmed by the Board, that Vidinski had engaged in marriage fraud, which results in a lifetime ban on being able to return to the United States. See 8 U.S.C. § 1154(c). Vidinski has raised legal issues within the scope of the jurisdiction authorized by 8 U.S.C. § 1252(a)(2)(D). In considering these issues, we review both the written decision of the immigration judge and the Board order adopting and affirming that decision. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010). We review the Board's legal conclusions de novo, but we defer to its factual findings, "reversing the Board only if the record lacks substantial evidence to support its factual conclusions." Sayaxing v. INS, 179 F.3d 515, 519 (7th Cir. 1999).

         I. Removal Proceedings

         Under 8 U.S.C. § 1227(a)(1)(A) and 8 U.S.C. § 1182(a)(6)(C)(i), an alien who attempts to procure an immigration benefit by fraud or material misrepresentation-including marriage fraud-is subject to removal. The government must prove marriage fraud with clear and convincing evidence. Surganova, 612 F.3d at 904; see generally Woodby v. INS, 385 U.S. 276, 285-86 (1966).

         In Vidinski's case, the government relied on the testimony of an ICE agent who interviewed Ms. Literski as part of an investigation into an extensive marriage fraud ring in Chicago.[2] The central figure in the ring was Jeremy Starnes. A man named Dion Liebich told the ICE agent that Starnes had helped him arrange his own fraudulent marriage and that he (Liebich) had referred Ms. Literski to Starnes. Following that lead, the agent contacted Ms. Literski and interviewed her in January 2011.

         According to the agent, Ms. Literski admitted that her marriage to Vidinski had been fraudulent. She said that Liebich (her former boyfriend) told her she could make money by entering into a sham marriage. Liebich arranged a meeting among Starnes, Ms. Literski, Vidinski, and another man. After that meeting, Ms. Literski and Vidinski married. Ms. Literski was paid $1, 000 the day of the marriage, with promises of more payments to come. She told the agent that Vidinski paid her a total of more than $5, 000 over the course of the marriage, but she never lived with him and never had sexual relations with him. No criminal charges have been filed against Ms. Literski, Vidinski, or Liebich.

         Ms. Literski also told the agent that several photographs that she and Vidinski had submitted to support their 2005 petitions for lawful permanent resident status had been altered to appear to be pictures of the two of them together. Ms. Literski signed a sworn statement describing the fraudulent arrangement. Her statement is consistent with the agent's report.

         The agent also testified that he served notices to appear on Vidinski and a Ms. Tzvetana Stanislavova, who had a child by Vidinski in 2005 while he was still legally married to Ms. Literski (and before Ms. Literski filed her 1-130 petition on his behalf). Vidinski and Ms. Stanislavova are now married.

         Additional documentary evidence supported the immigration judge's finding of marriage fraud. Vidinski submitted his federal and Illinois individual income tax returns for twelve years, from 1998 to 2009. All indicated that he was single, even though he was married to Ms. Literski from 2002 to 2009. (The government submitted a different return for 2005 that listed Vidinski and Ms. Literski as married, filing jointly, around the time of their interviews on her 1-130 petition. That discrepancy has not been ...

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