United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1587
                                   ___________

Khalid Ibrahimi,                       *
                                       *
            Petitioner,                *
                                       * Petition for Review from
      v.                               * an Order of the Board of
                                       * Immigration Appeals.
                     1
Eric H. Holder, Jr.,                   *
Attorney General of the United States, *
                                       *
            Respondent.                *
                                  ___________

                             Submitted: December 11, 2008
                                Filed: May 20, 2009
                                 ___________

Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,2 District Judge.
                           ___________

MELLOY, Circuit Judge.

      Khalid Ibrahimi, a Tunisian native and citizen, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) to deny him a waiver of the
spousal joint-filing requirement for the removal of the conditions on his permanent-


      1
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael
B. Mukasey as Respondent in this case.
      2
       The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
resident status. He claims that the BIA improperly allocated the burden of proof and
erroneously determined that he did not merit removal of the conditions regardless of
the burden. He further argues that the Immigration Judge (“IJ”) acted as a biased
arbitrator and erred in admitting certain evidence in violation of his due-process
rights. The Government argues that because the ultimate decision to grant the petition
to waive the joint-filing requirement is discretionary, we lack jurisdiction to hear this
appeal. The Government further contends that because there is no liberty interest in
discretionary relief from removal, we have no jurisdiction to consider Ibrahimi’s due-
process claim. We deny the petition for review.

                                            I.

       Permanent-resident status conferred on the basis of a marriage to a U.S. citizen
is granted initially on a conditional basis. 

Within ninety days prior
to the two-year anniversary of the grant of conditional permanent-resident status, an
alien can apply to have the conditional basis removed. 

(d)(2); 8
C.F.R. § 216.4(a)(1). To do so, the alien and U.S.-citizen spouse must file an I-751
Petition to Remove Conditions on Residence and appear at an interview with U.S.
Citizenship and Immigration Services (“USCIS”). 8 U.S.C. § 1186a(c)(3); 8 C.F.R.
§ 216.4(a)(1). If the alien meets these joint-filing requirements, then the agency will
remove the conditions on the alien’s permanent-resident status. 8 U.S.C. §
1186a(c)(3). In instances where the alien fails to meet the requirements because the
qualifying marriage ended prior to the two-year anniversary, however, the alien may
seek a discretionary waiver of the joint-filing requirement. 

In
order to establish eligibility for this good-faith marriage waiver or “hardship waiver,”
the alien must first show that he or she entered into a “qualifying marriage . . . in good
faith.” 

the alien has established this fact does the Attorney General
possess the discretion to grant the waiver and remove the conditional basis of the
permanent-resident status. 

Government denies the waiver application, the
alien is entitled to seek review of the denial before the IJ during the course of removal
proceedings. 8 C.F.R. § 216.5(f).

                                           -2-
       Khalid Ibrahimi entered the United States as a non-immigrant visitor for
pleasure in May 2000. Ibrahimi married a U.S. citizen, Nicole Kohring, on January
17, 2002. Four months later, he applied for adjustment of status to that of a legal
permanent resident based on his marriage. USCIS granted Ibrahimi conditional
permanent residence as Kohring’s spouse in May 2003. In April 2004, however,
Kohring and Ibrahimi divorced, and within the month, USCIS notified Ibrahimi of its
intent to terminate his conditional permanent-resident status because of the divorce.
Ibrahimi filed a petition seeking to waive the joint-filing requirement and have the
conditions removed. USCIS denied the petition and terminated his conditional
permanent-resident status in August 2004. The agency then initiated removal
proceedings against him. During those proceedings, the IJ found Ibrahimi removable
under 8 U.S.C. § 1227(a)(1)(D)(i) because USCIS had terminated his conditional
permanent-resident status after the divorce.

        Following the IJ’s removability determination, Ibrahimi renewed his petition
for a good-faith-marriage waiver under § 1186a(c)(4). The IJ continued the hearing
to allow the parties to gather evidence. During that proceeding, the IJ heard lengthy
testimony on the nature of Ibrahimi’s relationship with Kohring in order to determine
whether he had entered into his marriage with her in good faith. Ibrahimi; Kohring;
Ibrahimi’s former girlfriend, Stacey Urgento; two of Ibrahimi’s co-workers; and a
USCIS agent were witnesses during the proceeding adjudicating Ibrahimi’s waiver
petition. During these proceedings, the IJ explicitly found Urgento’s testimony
credible but called into question Kohring’s credibility by referring to portions of her
testimony as “outlandish.” The IJ, however, never made an explicit credibility finding
as to Ibrahimi’s testimony. In the absence of “an explicit adverse credibility finding,”
we are obligated to accept as true a witness’s testimony. Mohamed v. Gonzales, 

, 527 (8th Cir. 2007) (“An implicit credibility finding made in passing does
not suffice.”); accord Nguyen v. Mukasey, 

, 855 n.2 (8th Cir. 2008) (per
curiam). Thus, to the extent that Ibrahimi’s testimony does not conflict with



                                          -3-
Urgento’s statements, the evidence in the administrative record indicates the
following.

      Upon his arrival in the United States in 2000, Ibrahimi began dating Urgento,
a U.S. citizen. They were in a relationship for more than a year, eventually co-
habitating in Washington, D.C. While the two discussed marriage at various points
during their relationship, often at Ibrahimi’s urging, Urgento ended their relationship
in December 2001 following a holiday visit with her family. Urgento admitted that
her family did not approve of her relationship with Ibrahimi and noted that fact as part
of the reason they separated. During her testimony about her relationship with
Ibrahimi, she said that, at various points during their courtship, he had threatened to
leave her and marry another women if she refused to marry him.

       Three days after Ibrahimi and Urgento’s break-up, on December 28, 2001,
Ibrahimi met Kohring at a bar. They had consensual sexual relations that evening.
Within two days, Kohring and Ibrahimi decided to move in with one another, and they
began discussing marriage immediately. Less than one month later, on January 17,
2002, they were married in a civil ceremony at a courthouse. Ibrahimi testified that
he married Kohring out of love and that they had fallen in “crazy love . . . instantly.”
Ibrahimi denied marrying Kohring for immigration benefits, citing the fact that at the
time of his marriage to Kohring, his D.C. employer had submitted a labor certification
for him that would have made him eligible for adjustment of status on those grounds.
Ibrahimi testified that he believed that he would be allowed to stay in the country
based on his employment.

       Immediately after the wedding, Kohring and Ibrahimi lived together with other
roommates. Once Kohring’s lease ended, in April 2002, Ibrahimi and Kohring co-
signed a lease and moved into their own apartment. Kohring became pregnant with
their child and moved from Washington, D.C., to St. Louis to be closer to her family
in November 2002. Ibrahimi followed two weeks later. In St. Louis, they again lived
together as husband and wife, establishing a joint bank account into which they

                                          -4-
deposited both of their paychecks. Kohring listed Ibrahimi as her health-insurance
dependent.

       On May 10, 2003, USCIS adjusted Ibrahimi’s status to that of a conditional
legal-permanent resident. Ibrahimi and Kohring’s relationship was rocky, however,
and they separated in July 2003, a few months after their son was born and two
months following Ibrahimi’s adjustment of status. Kohring moved out of their marital
residence, and their divorce became final on April 19, 2004. In all, Kohring and
Ibrahimi were married approximately two years and two months, and they were
separated for almost eleven months during that period.

       The IJ relied extensively on Urgento’s testimony and found it “incredulous”
that the circumstances surrounding Ibrahimi’s marriage to Kohring could support a
determination that he had entered into his marriage in good faith. In addition to
details about her relationship with Ibrahimi, Urgento had testified that Ibrahimi had
called her a week before his wedding to Kohring and had attempted to reconcile their
relationship, seeking to marry Urgento instead. Despite the fact that Ibrahimi was
involved in a long-term relationship with Urgento immediately prior to meeting
Kohring, Kohring was unaware of that relationship until after Ibrahimi and Kohring
had separated. Ibrahimi claimed that he had kept the relationship a secret so that
Kohring would not become jealous and leave him. Urgento had known about
Ibrahimi’s marriage to Kohring, however. In fact, Urgento had heard about it from
Ibrahimi’s family in February 2002 when they erroneously called to congratulate her
on her marriage to Ibrahimi. After this phone call, Urgento sent a facsimile to USCIS
informing the agency that Ibrahimi was in the country illegally.

       The BIA did not explicitly adopt the IJ’s decision but affirmed its finding that
the marriage was not a good-faith marriage and its denial of a waiver of the joint-filing
requirement. As support for its conclusion, the BIA cited to the timing of Ibrahimi’s
break-up with Urgento and his marriage to Kohring, the fact that Ibrahimi had
threatened to leave Urgento if she did not marry him, and the phone call that Ibrahimi

                                          -5-
made to Urgento just prior to the wedding seeking reconciliation. The BIA noted that
the evidence of their joint residences, joint bank accounts, joint health insurance, and
family life was “of limited probative value in light of the testimony [from Urgento]
regarding the respondent’s motivation at the time of his marriage.” Accordingly, the
BIA found that the IJ properly denied Ibrahimi’s application for a good-faith-marriage
waiver.3

                                           II.

      A. Burden of Proof to Show Good-Faith Marriage

        During the adjudication of Ibrahimi’s waiver of the joint-filing requirement, the
IJ placed the burden of proof “on the Department” to show that Ibrahimi entered his
marriage in good faith. On appeal, the BIA reallocated the burden of proof, requiring
that Ibrahimi be the one to establish that he entered a good-faith marriage. Ibrahimi
first argues that the BIA erred in placing the burden of proof on him and that the IJ
was correct in stating that the Department bore the burden. Ibrahimi further claims


      3
           The Government argues that the BIA’s denial of the waiver was alternatively
premised on an unfavorable exercise of discretion. We disagree. While the IJ
indicated Ibrahimi did not merit a favorable exercise of discretion, the BIA neither
explicitly adopted nor impliedly addressed this finding. We resist the Government’s
contention that the fact that the BIA “found no reason to disturb the Immigration
Judge’s denial of the . . . request for a waiver” and found that the IJ “properly denied
the . . . application for waiver” necessarily incorporates the IJ’s decision regarding the
exercise of discretion. Rather, the BIA’s decision was solely premised on the fact that
Ibrahimi was ineligible for the waiver because he failed to prove that he had entered
into his marriage in good faith. “Because the BIA did not consider the IJ’s alternative
grounds for denying relief, those issues are not properly before us.” Fofanah v.
Gonzales, 

, 1040 (8th Cir. 2006) (citing INS v. Ventura, 

(2002)); Falaja v. Gonzales, 

, 899 n.6 (8th Cir. 2005) (“Because the BIA
did not address the IJ’s extraneous ruling denying discretionary relief, we have no
jurisdiction to consider the matter.” (citing 

)).


                                           -6-
that even if the IJ improperly allocated the burden of proof, the BIA erred in
reallocating that burden without comment. This court reviews “an agency’s legal
determinations de novo, according substantial deference to the agency’s interpretation
of the statutes and regulations it administers.” Llapa-Sinchi v. Mukasey, 

, 899 (8th Cir. 2008) (quotation omitted).

       Section 1186a(c) governs petitions to remove the conditions on
permanent-resident status and waive the joint-filing requirement. Contrary to
Ibrahimi’s argument, and in line with the BIA’s decision, this section places the
burden of proof to establish a good-faith marriage on the alien when that alien files
a petition to remove the conditional basis of his permanent resident status:

      The Attorney General, in the Attorney General’s discretion, may remove
      the conditional basis of the permanent resident status for an alien who
      fails to meet the requirements of paragraph (1) if the alien demonstrates
      . . . the qualifying marriage was entered into in good faith by the alien
      spouse . . . .”

8 U.S.C. § 1186a(4) (emphasis added); see also Nyonzele v. INS, 

, 980
(8th Cir. 1996); Roos v. U.S. Attorney Gen., 167 F. App’x 752, 754–55 (11th Cir.
2006) (unpublished); Gaur v. Gonzales, 124 F. App’x 738, 740 (3d Cir. 2005)
(unpublished).4 The fact that the BIA corrected the IJ’s erroneous allocation of the
burden of proof without comment does not require a remand. The BIA had the power
to conduct a de novo review of the IJ’s legal conclusions pursuant to 8 C.F.R. §
1003.1(d)(3)(ii). It did not, therefore, err when it corrected the IJ’s misstep without
comment. Cf. De Brown v. Dept. of Justice, 

, 778 (9th Cir. 1994) (finding
no error when the BIA affirmed the IJ’s conclusion after applying a different standard




      4
        The IJ appears to have relied on the language in 8 U.S.C. § 1186a(b). Once
an alien files a petition to waive the conditions, however, the governing statutory
provision is 8 U.S.C. § 1186a(c).

                                         -7-
of proof than the IJ). We conclude that the BIA properly placed the burden on
Ibrahimi to show that he entered his marriage in good faith.

      B. Jurisdiction to Determine Good-Faith Marriage

       Ibrahimi further contests the BIA’s denial of his good-faith-marriage waiver.
Because the ultimate determination as to whether to grant a waiver is discretionary,
the Government argues that we lack jurisdiction to hear Ibrahimi’s appeal. See 8
U.S.C. § 1252(a)(2)(B) (outlining the limitations on this court’s jurisdiction to hear
denials of discretionary relief). Ibrahimi counters that his case only involves the
agency’s determination as to his statutory eligibility for the waiver—i.e., whether he
entered his marriage in “good faith.” Ibrahimi argues that since eligibility for
discretionary relief is a question of law or the application of law to facts, this court
retains jurisdiction to review the decision to deny the waiver on the basis that he failed
to establish a good-faith marriage. We agree with Ibrahimi.

        In the context of good-faith-marriage waivers, our jurisdiction depends on the
nature of the BIA’s decision under § 1186a(c)(4) . This court has held that “[w]e have
jurisdiction to consider what the legal standard is for the good-faith determination and
to review the threshold determination of whether the credited evidence meets the
good-faith standard.” 

; cf. Guled v. Mukasey, 

,
880 (8th Cir. 2008) (“We may review the non-discretionary determinations underlying
[eligibility for cancellation of removal], such as the predicate legal question whether
the IJ properly applied the law to the facts in determining an individual’s eligibility.”).
While a good-faith-marriage determination certainly involves some fact-finding,
ultimately the conclusion is governed by a legal standard. Because the question of
whether a marriage was entered into in good faith is a “predicate legal question” that
amounts to a “nondiscretionary determination[] underlying the denial of relief,” then,
this court has jurisdiction to review whether Ibrahimi met the legal standard necessary
to establish his eligibility for the waiver. 

–55. As per



                                           -8-
Nguyen, our jurisdiction is limited to this legal determination and does not extend to
the underlying factual determination.

       In an effort to preclude this court from exercising jurisdiction, the Government
relies on Suvorov v. Gonzales, 

(8th Cir. 2006) and Ignatova v. Gonzales,

(8th Cir. 2005), two cases where we found jurisdiction lacking. While
these cases do discuss jurisdiction in the context of good-faith-marriage waivers, we
find them distinguishable. In both Surorov and Ignatova, the agency’s denials of
good-faith-marriage waivers were premised on purely factual determinations. In each
case, an adverse credibility determination drove the agency’s conclusion that there
was no good-faith marriage. See 

n.2 (discussing Surorov
and Ignatova). Congress has explicitly provided that the BIA has “the sole discretion”
to determine “what evidence is credible and the weight to be given that evidence” in
determining whether a good-faith-marriage waiver is warranted, 8 U.S.C. §
1186a(c)(4), and Nguyen recognized this limitation. 

–55.
In other words, consistent with the statute’s language, Suvorov and Ignatova prevent
us from exercising jurisdiction to pass upon the credibility and weight of the evidence
that a petitioner has presented in an attempt to establish eligibility for a waiver of the
joint-filing requirement. Id.; see also Ebrahim v. Gonzalez, 

, 883–84
(8th Cir. 2006) (“Here, the IJ, as in Suvorov, determined that [the alien] was not
eligible for waiver after finding [the alien and his former wife] were not credible and,
therefore, did not enter into the marriage in good faith. Therefore, following Suvorov,
we lack jurisdiction to review the denial of the waiver.”). These cases do not prevent
us from asserting jurisdiction to make a determination of what constitutes a good-faith
marriage and whether the credited evidence meets that standard.

       In this case, the BIA’s denial of Ibrahimi’s waiver was not premised upon a
finding that the evidence of the bona fide nature of his marriage was incredible. In
fact, as discussed above, the agency did not make a specific credibility finding with
regard to his testimony or his evidence at all, with the exception of expressly crediting


                                           -9-
Urgento’s testimony. Ibrahimi is, instead, asking this court to review whether the BIA
properly applied the law to the facts in concluding that his credited evidence failed to
meet the good-faith legal standard and thus properly prevented him from establishing
his eligibility for discretionary relief under § 1186a(c)(4)(B). We have jurisdiction
to consider that question. See 8 U.S.C. § 1252(a)(2)(D) (preserving jurisdiction over
“constitutional claims or questions of law”); 

.

      C. Good-Faith-Marriage Determination

       Having established that jurisdiction is proper, we review the agency’s
conclusion of law—that Ibrahimi’s credited evidence did not satisfy the legal standard
of what constitutes a good-faith marriage—de novo. See Iyamba v. INS, 

, 607–08 (8th Cir. 2001) (per curiam). In determining whether an alien has entered
into a good-faith marriage, “the central question is whether [the couple] intended to
establish a life together at the time they were married.” Damon v. Ashcroft, 

, 1088 (9th Cir. 2004); Cho v. Gonzales, 

, 102 (1st Cir. 2005); see
also Matter of Laureano, 19 I. & N. Dec. 1, *3 (BIA 1983). Criteria that the agency
may consider to gauge this intent and the “commitment of both parties to the marital
relationship” is set forth in the regulations. 8 C.F.R. § 1216.5(e)(2); see also
Nyonzele v. INS, 

, 980 (8th Cir. 1996). This evidence may include “(i)
[d]ocumentation relating to the degree to which the financial assets and liabilities of
the parties were combined; (ii) [d]ocumentation concerning the length of time during
which the parties cohabited after the marriage and after the alien obtained permanent
residence; (iii) [b]irth certificates of children born to the marriage; and (iv) [o]ther
evidence deemed pertinent.” 8 C.F.R. § 216.5(e)(2).

      The credited evidence supports the BIA’s decision that Ibrahimi did not enter
his marriage in good faith.5 The BIA relied heavily on the timing and length of

      5
        Ibrahimi correctly points out that other credited evidence supports his
argument that the marriage was entered into in good-faith. Nothing requires that the
BIA rest its decision on the credited evidence that Ibrahimi highlights, however.

                                         -10-
Kohring and Ibrahimi’s courtship in combination with the testimony of Ibrahimi’s
former girlfriend, Urgento, in reaching its conclusion. While Kohring’s and
Ibrahimi’s courtship was short, this alone does not require a conclusion that the
relationship was not bona fide. See, e.g., 

(courtship of
“several weeks”). There is other evidence in the record, however, to indicate that at
the time of the marriage Ibrahimi was not committed to the marital relationship.
Ibrahimi had just ended a long-term relationship with Urgento during which they had
discussed marriage. Urgento’s credited testimony revealed that Ibrahimi had
threatened to leave her and find someone else to marry if Urgento refused to marry
him, which she ultimately did. Urgento’s credited testimony further revealed that
Ibrahimi called her “within the first two weeks of January” 2002 and that “[t]he nature
of the conversation was asking [her] to reconsider getting married.” This call took
place, at most, one week prior to Ibrahimi’s marriage to Kohring.

       Thus, while the record contains evidence of a shared life together, the agency’s
determination that the evidence of a shared life was “of limited probative value in
light of the testimony regarding [Ibrahimi’s] motivation at the time of his marriage”
is conclusive. We again note that § 1186a(c)(4) explicitly provides that “[t]he
determination of what evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Attorney General.” 8 U.S.C. § 1186a(c)(4).
We are not at liberty then to reevaluate the relative strength of the evidence of
Ibrahimi’s shared life compared to Urgento’s testimony regarding Ibrahimi’s
intentions. See 

–81 (“We are not at liberty to reweigh the
evidence.”). And there is no claim that the BIA substituted its personal conjecture or
inference for reliable and credited evidence. See 

. In
conclusion, the credited evidence in the record supports the BIA’s conclusion that
Ibrahimi did not intend to establish a marital life with Kohring at the time he entered
the marriage. We thus find that the BIA did not err by concluding that Ibrahimi was
ineligible for a good-faith-marriage waiver because he did not meet the legal standard
of what constitutes a good-faith marriage.


                                         -11-
                                           III.

       Ibrahimi further argues that various aspects of the adjudication of his good-
faith-waiver petition violated due process. He claims that the IJ acted as a biased
arbiter and erred in admitting certain evidence. The Government argues that the
alleged violations do not go to the determination of removability but rather to the
disposition of the discretionary good-faith-waiver petition. As a result, the
Government posits that Ibrahimi has no constitutionally protected liberty interest, and,
without a liberty interest, he has no right to due process. Because we agree that
Ibrahimi’s appeal to the Attorney General’s discretion for relief from removal does
not create a right sufficient for a liberty interest, we find there is no due-process right
at stake, and we are without jurisdiction to hear these claims.

       Aliens have a general right to due process in removal proceedings, Reno v.
Flores, 

, 306 (1993), and due process mandates that “removal hearings
be fundamentally fair.” Al Khouri v. Ashcroft, 

, 464 (8th Cir. 2004). In
order to be fundamentally fair, we have stated that the “arbiter presiding over the
hearing must be neutral and the immigrant must be given the opportunity to fairly
present evidence, offer arguments, and develop the record.” Tun v. Gonzales, 

, 1025 (8th Cir. 2007). As a threshold requirement to any due-process
claim, however, the alien must show that he or she has a protected property or liberty
interest. Garcia-Mateo v. Keisler, 

, 700 (8th Cir. 2007); Etchu-Njang v.
Gonzales, 

, 585 (8th Cir. 2005). And we have repeatedly held that “there
is no constitutionally protected liberty interest in discretionary relief from removal.”

(voluntary departure); 

(cancellation of removal); Jamieson v. Gonzales, 

, 768 (8th Cir. 2005)
(adjustment of status); Nativi-Gomez v. Ashcroft, 

, 808–09 (8th Cir.
2003) (adjustment of status). In those circumstances, because there is no liberty
interest, the Due Process Clause does not apply, and, because there is no constitutional



                                           -12-
question or question of law, we lack jurisdiction to hear the claims under 8 U.S.C. §
1252(a)(2)(D).

        Ibrahimi was placed in removal proceedings under 8 U.S.C. § 1227(a)(1)(D)(i),
which provides that “[a]ny alien with permanent resident status on a conditional basis
. . . who has had such status terminated . . . is deportable.” Thus, to establish
removability, the Government was only required to show by a preponderance of the
evidence that Ibrahimi and his wife were no longer married. 

The parties do not contest that this was properly established, and Ibrahimi does not
argue that the proceedings during which the Government established his removability
were in any way constitutionally flawed. Instead, Ibrahimi argues that the IJ violated
his rights during the hearing on whether he merited a good-faith waiver, i.e.,
discretionary relief from removal. As discussed above, an appeal to the agency’s
discretion is not a substantive entitlement sufficient to support a finding of a liberty
interest. 

(refusing to assert jurisdiction over a due-process
claim in a cancellation-of-removal proceeding when the petitioner claimed that the IJ
allowed a witness to testify without providing proper notice). Nor does Ibrahimi have
a constitutionally protected interest in eligibility for discretionary relief. Garcia-

; see also Nguyen v. Dist. Dir., Bureau of Immigration and
Customs Enforcement, 

, 259 (5th Cir. 2005) (“[N]either relief from
removal under discretionary [§ 212(c)] waiver nor eligibility for such discretionary
relief is entitled to due process protection.” (citation and emphasis omitted)).

       In conclusion, because Ibrahimi does not have a liberty interest in obtaining
discretionary relief from removal, he has no due-process right, and we are without
jurisdiction to consider his argument.
                                        IV.

       Having considered all of Ibrahimi’s claims, for the foregoing reasons, we deny
his petition for review.
                         ______________________________

                                         -13-