Filed: Apr. 06, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1856 _ DELROY LINDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A056-034-195) Immigration Judge: Honorable Eugene Pugliese _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 1, 2011 Before: SCIRICA, FISHER and ALDISERT, Circuit Judges (Filed: April 6, 2011) _ OPINION OF THE COURT _ PER CURIAM. Delroy Lindo pe
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1856 _ DELROY LINDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A056-034-195) Immigration Judge: Honorable Eugene Pugliese _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 1, 2011 Before: SCIRICA, FISHER and ALDISERT, Circuit Judges (Filed: April 6, 2011) _ OPINION OF THE COURT _ PER CURIAM. Delroy Lindo pet..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1856
___________
DELROY LINDO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A056-034-195)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges
(Filed: April 6, 2011)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Delroy Lindo petitions for review of a final order of the Board of Immigration
Appeals (BIA) affirming the decision of the Immigration Judge (IJ). We will dismiss the
petition for lack of jurisdiction.
Lindo is a citizen of Jamaica. In 2001, he married Lurline Brown, a United States
citizen. Based on his marriage, Lindo entered the United States in 2002 as a conditional
permanent resident under section 216(a)(1) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1186a(a)(1). The conditional basis of an alien‟s permanent-resident
status may be removed if the alien and the United States spouse jointly submit a petition
to the Attorney General. See INA § 216(c)(1). Here, before Lindo and Brown filed such
a petition, they divorced. Lindo then filed an application for a hardship waiver under
section 216(c)(4). Under this section, if the alien shows, for instance, that “the qualifying
marriage was entered into in good faith” (as Lindo claimed here), the Attorney General
has the discretion to remove the alien‟s conditional status. INA § 216(c)(4)(B).
The United States Citizenship and Immigration Services denied Lindo‟s
application, and the Department of Homeland Security commenced removal proceedings,
charging Lindo as removable under section 237(a)(1)(D)(i) as an alien whose
conditional-permanent-resident status had been terminated. Before an IJ, Lindo reiterated
his argument that he was entitled to a hardship waiver under section 216(c)(4) and was
thus not removable. See INA § 237(a)(1)(D)(ii) (providing a defense to removability for
aliens who obtain a hardship waiver). The IJ rejected this argument, and Lindo appealed
to the BIA, reasserting the defense. The BIA likewise ruled against Lindo, concluding
that he had “failed to present any significant documentation to corroborate his testimony
that his marriage was bona fide.” Lindo then filed a petition for review in this Court. He
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raises a single claim: that the BIA erred in concluding that he did not enter into his
marriage in good faith.
The government contends that we lack jurisdiction to review Lindo‟s petition
because the BIA‟s decision represents a discretionary action subject to the jurisdiction-
stripping provisions of the INA. See INA § 242(a)(2)(B)(ii). As the government points
out, we have addressed this precise issue in Urena-Tavarez v. Ashcroft,
367 F.3d 154 (3d
Cir. 2004). In Urena-Tavarez, an alien appealed an order in which the BIA denied a
hardship waiver due to its conclusion that the alien had not entered into his marriage in
good faith.
Id. at 157. We noted that section 242(a)(2)(B)(ii) provides that any “decision
or action of the Attorney General . . .[,] the authority for which is specified under this title
to be in the discretion of the Attorney General,” is not subject to judicial review.
Id. at
158 (internal quotation marks omitted). We then concluded that the BIA‟s decision to
reject a hardship waiver under section 216(c)(4) involved two levels of discretion: first,
the statute states that even if the alien shows that he is eligible for a hardship waiver, the
Attorney General has discretion as to whether to grant a waiver, and second, the statute
provides that “the Attorney General has the sole discretion to decide what evidence is
credible and the weight to be given that evidence.”
Id. at 159-60 (internal quotation
marks omitted). We thus held that section 242(a)(2)(B)(ii) barred our review of the
alien‟s claim.
Id. at 161.
Lindo argues that Urena-Tavarez has been effectively superseded by the REAL ID
Act of 2005. Through that Act, Congress amended section 242(a)(2) to include the
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following provision: “[n]othing in subparagraph (B) or (C) . . . which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or
questions of law.” INA § 242(a)(2)(D). Lindo claims that he raises a legal challenge to
the BIA‟s ruling on the good-faith nature of his marriage, and is thus entitled to review
by this Court notwithstanding section 242(a)(2)(B).
Contrary to Lindo‟s argument, Urena-Tavarez remains controlling and is
dispositive here. In that case, we determined that we lacked jurisdiction because the
BIA‟s decision denying the hardship waiver was a matter of its discretion, and section
242(a)(2)(B) prohibited us from reviewing the agency‟s discretionary decisions. Even
after the REAL ID Act, “factual or discretionary determinations continue to fall outside
the jurisdiction of the court of appeals entertaining a petition for review.” Sukwanputra
v. Gonzales,
434 F.3d 627, 634 (3d Cir. 2006). Thus, the amendment to section 242(a)(2)
does not affect our holding in Urena-Tavarez.
While Lindo attempts to frame his argument as one of law, at bottom he is merely
arguing that “the evidence he submitted [shows] that his marriage was entered in „good
faith.‟” As we have explained, “arguments such as that an Immigration Judge or the BIA
incorrectly weighed evidence, failed to consider evidence or improperly weighed
equitable factors are not questions of law under § [242](a)(2)(D).” Jarbough v. Att‟y
Gen.,
483 F.3d 184, 189 (3d Cir. 2007); see also Contreras-Salinas v. Holder,
585 F.3d
710, 715 (2d Cir. 2009) (holding that “regardless of how petitioner characterizes her
claim” the BIA wrongly ruled that she had not entered into her marriage in good faith, the
4
Court lacked jurisdiction because “she is essentially challenging the agency‟s credibility
determinations and the relative weight it accorded to evidence”).
Here, the BIA balanced the relevant evidence and concluded that Lindo had failed
to show that he had entered into his marriage in good faith. That decision “is dispositive
and impervious to review.”
Urena-Tavarez, 367 F.3d at 160. Accordingly, we will
dismiss Lindo‟s petition for review for lack of jurisdiction.
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