Johns v. Holder, 2012 U.S. App. LEXIS 8904

Tatiana Johns, a Russian citizen, married US citizen Peter Rekshan in 1998 and moved to the United States, becoming a conditional permanent resident.
Johns and Rekshan filed a joint petition to remove the conditional status two years after entry, but they divorced before processing.
The hardship waiver, 8 U.S.C. § 1186a(c)(4), allows unconditional permanent residency if the marriage was entered in good faith; the Board of Immigration Appeals has discretion to grant it.
An immigration judge found Johns did not marry Rekshan in good faith and denied the waiver, ordering removal to Russia; the Board affirmed.
The Sixth Circuit addresses whether it has jurisdiction to review the Board’s weight/credibility determinations and the merits of the good-faith finding, and whether Johns’ constitutional claims have merit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction over good-faith finding	Johns argues the Board erred in credibility/weight determinations on the good-faith issue.	The hardship-waiver decision and credibility assessments are discretionary to the Attorney General.	We lack jurisdiction to review weight/credibility; limited review for legal questions, but substantial-evidence standard applies.
Substantial-evidence review of good-faith finding	Weight/credibility errors undermined the finding that the marriage was not in good faith.	Board’s credibility assessment is within discretion; substantial evidence supports the finding.	Substantial evidence supports the Board’s finding that Johns did not marry in good faith.
Constitutional claims and due process	Impartiality of the judge and procedural delay violated due process and Board rules.	Arguments are insufficient to show bias or substantial prejudice; delays do not merit relief.	Constitutional claims lack merit; no reversible error shown.
Paperwork Reduction Act argument	Board violated the PRA by issuing two versions of the decision.	Argument is perfunctory and forfeited; no demonstrated prejudice.	Argument forfeited; no relief.

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (jurisdiction-stripping provision limits review to constitutional/ legal questions)
Jebeili v. Holder, 421 F. App'x 547 (6th Cir. 2011) (hardship waivers are discretionary; limited review of weight/credibility)
Osei v. Holder, 462 F. App'x 559 (6th Cir. 2012) (limits on review of credibility/weight in discretionary decisions)
Iliev v. Holder, 613 F.3d 1019 (10th Cir. 2010) (limits on review of weight/credibility in eligibility determinations)
Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (overtones on whether errors in record constitute legal error)
Huang v. Mukasey, 523 F.3d 640 (6th Cir. 2008) (courts can perform substantial-evidence review while deferring weight/credibility to agency)
Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005) (substantial-evidence review applied to hardship decisions)
Garcia-Morales v. Holder, 379 F. App'x 431 (6th Cir. 2010) (acknowledged review of legal error in factors considered in discretionary relief)
Jebeili v. Holder, 421 F. App'x 547 (6th Cir. 2011) (discretionary nature of waiver; credibility determinations reviewed within limits)
Revised additional cited, Cho, 404 F.3d 96 (1st Cir. 2005) (cases recognizing substantial-evidence review in asylum/waiver contexts)