*3 DAVIS, HAYNES, Before OWEN and Judges. Circuit HAYNES, Judge: Circuit (“Al- Esperanza Rodriguez Alvarado de varado”) appeals Immigration the Board of (“BIA”) Appeals’ decision, which over-: Immigration Judge’s turned an order granting good-faith hardship her a waiver joint filing requirement of section 216(c)(4)(A) the Immigration and Na- (“INA”). tionality Act Such waiver required was remove the condi- status, tional nature of Alvarado’s and the BIA’s denial of the meant peti- would be to Mexico. In her remоved review, (1) tion for Alvarado claims that jurisdiction this Court has to consider her (2) appeal; incorrectly reviewed Immigration Judge’s findings of fact (3) novo; de the BIA’s consideration of a government-sponsored was im- affidavit proper; and the BIA’s eventual hold- ing was entered —that into in good faith —was erroneous. Be- cause the BIA the incorrect standard the marriage to conclude faith, to the United we she fled August in good into nоt entered escape RE- her children to BIA and with two of the order States REVERSE incon- relationship in Mexico. Alvara- proceedings for further an abusive MAND opinion.1 initially in with her sister sistent with this moved do Christi, Texas, joined soon Corpus Background I. Factual met Villafranco in by her son. She resident permanent apartment U.S. in the same Alvarado was when both lived due to her on a conditional basis friends Villaf- complex. She became with citizen, an American Melecio Villafran ranco, to run and he would often drive her residency Ordinarily, removal co. *4 Alvarado buy groceries. and errands spouses that the require condition would Villafranco. Vil- would share dinner with However, Alvarado joint file a petition. pur- Alvarado with the lafranco assisted was un separated, and he and Villafranco Although in 1994. of her house chase fact, he joint in willing petition; to a file yеars approximately Villafranco was with completed requesting an affidavit Alvarado, came think of than she to older soon alien relative drawal his more than a friend. him as break-up. deportation To avoid after their in marriage proposed Villafranco When Mexico, Alvarado country of to her native 1995, Al- accept. did to she not hesitate charged establishing entitlement with and Villafranco were though Alvarado compliance to a waiver excuse hardship to 1995, on married October joint requirement. In order filing with the was not from her first husband divorce hardship under qualify to for a until Her was ad- finalized status prove had to “good prong, faith” Alvarado a non-immigrant a to justed from visitor good into in that her was entered a basis conditional permanent resident fault in and she was not at faith that upon her on June 1997 based statutory condition. failing meet to Villafranco. 1186a(c)(4)(B).2 The cen 8See U.S.C. Immigra tral considered During marriage, their Alvarado lived (and BIA) later, Judge was wheth tion Villafranco, they bought to- groceries with “intended to er Alvarado and Villafranco together, had and went gether, meals together at the time establish life They them- together weekly. held church is, whether, at the were married” —that be, them- out and considered selves union, they in time of married be, and Alvarado husband wife. selves faith. that moved in with her testified Villafranco and left her house 1998. Alva- in 1995 Immigra- hearing
At a before an outwardly professed Alvarado, rado stated she Judge, daughter, her and tion love love for Villafranco and did indeed testified, doc- her presented co-worker and she him. Alvarado showed affection for Villaf- umentary satisfy her evidentia- holding his and kiss- ry publicly, ranco hand explained burden. Alvarado stаndard, (B) qualifying mar- properly demonstrates 1. Once the correct is that — case, appears riage facts of this to the was entered into eligibility would spouse, qualifying marriage has alien but for a waiver. and the was not terminated ... alien been requirements of failing to meet the fault General, section, Attorney "[t]he 2. Under this (1) among things, paragraph [requiring, other discretion, may re- in the General's joint petition].” Id. permanent movе the basis of the conditional the alien resident an alien ... if status for ing Initially, him. Alvarado felt affection Alvarado submitted several documents exhibits, (1) towards Villafranco. she con- as including: a declaration of feelings changed (2) that her when marriage, tends Vil- 1995; dated October began heavily lafranco to drink and acted decree, 4, 1998; divorce dated December daughter (3) her inappropriately toward seven affidаvits from friends and co- daughter’s her friend. Alvarado testified attesting workers to the bona fide nature marry agree Villafranco (4) marriage; applications for life purpose obtaining immigration insurance which reflect that Alvarado and papers. Villafranco were designated cross-benefi- ciaries; hospital Alvarado’s 1997 rec- attempted impeach Government indicating ords a designation of Villafranco testimony, objection, over with contact, as spouse emergency doc- affidavit executed In Villafranco. umenting his conduct explaining medical document, stated, among wife; (6) procedures to his Internal Reve- things, begin living other that he did not receipts nue Service reflecting Alvarado with until 1997 she told *5 and Villafranco’s status filing as “married him upon separation their she that did not (7) utility jointly”; for bills Alvarado’s cross-examination, lovе him. On Alvarado (8) attention; home sent to Villafranco’s that admitted slept Villafranco his own 1995 school enrollment form for Alvarado’s slept bedroom while she in a bedroom with daughter naming Villafranco as emergency her daughter. contact; (9) plot a record of a cemetery Chavez, a Catalina co-worker of Alvara- purchased by using Villafranco Alvarado’s do, that testified she often saw Villafranco (10) addrеss; home by written affidavit take Alvarado to and from work. Chavez Alvarado; and a letter from one also stated that Alvarado surgery had daughters Alvarado’s discussing the mar- accompanied that and Al- riage and its dissolution. during varado to the time. hospital explained The Government did not present any Chavez that she had observed testimony submitted, at the but hearing Alvarado and Villafranco hold hands and other, ostensibly impeachment purposes, affectionate with each and February them 1998 affidavit considered to be married. executed Villaf- ranco. There was no indication that Villaf- Gladys Enriquez, daughter, was testify. ranco unavailable to being testified that she recalled Villafranco 11, 2005, nice man who would drive her to school On March the IJ issued an oral and drive her mother to Enriquez granting work. decision Alvarado a faith family stated that Villafranco аssisted the joint petition requirement. waiver to the in fixing the house and summarizing that Villafranco After the evidence before always him, was Enriquez there. also testified the IJ concluded that Alvarado’s tes- “candid, that Villafranco was drunk and acted timony was specific, plausible, inappropriately toward one of her documentation, friends. consistent with supporting Enriquez consistent, internally remember Alvarado unembellished.” showing physical affection towards Villaf- testimony The IJ found that the of Alvara- ranco, suggested do, but Enriquez, such affectionate and Chavez was credible conduct would be out of character for her Alvarado established her mar- Enriquez mother. approximately riage to Villafranco was bona fide. The IJ years eleven old only when Villafranco moved observed evidence that cast out of the house. upon doubt Villafranco and Alvarado’s 1003.1(d)(3)(I) con- that the BIA’s the affidavit executed hearsay affidavit granted of Villafranco’s the IJ sideration Accordingly,
Villafranco. Al- The BIA denied process. the condi- due to remove violated petition by order her motion to reconsider tions on residence. varado’s that, explained “[i]n It July dated with the appeal filed an The Government proper weight its giving [the affidavit] that, argued based The BIA. Government gave signifi- respondents, we impeach the testimony, on Alvarado’s testimony. weight to their cantly less to establish did not intend that she showed many other factors on this Based The Gov- together a life with Villafranco. decision, con- previous in our we discussed testimony affidavit pointed to the ernment have respondents to find that tinue slept sep- and Villafranco that Alvarado Al- proof.” to meet burden of failed lived and that Villafranco arate bedrooms filed a for review varado then year. The only one with Alvarado The filed a mo- this Court. Government the circum- argued also Government BIA, conceding tion remand Al- surrounding preparation stances BIA’s decisions indicated that (specifically, immigration papers varado’s improperly re-weighed evidence. court her) sus- that Alvarado’s son assisted were granted Court the motion remаnd This picious. using for the BIA re-examine facts order appeal sustained proper standard of review. 28, 2007, concluding that February dated 13, 2008, again that she en- sus- failed June On *6 faith. The marriage appeal. into the DHS’s The BIA stated tered the tained give the IJ did not suffi- the of proving BIA stated that that Alvarado had burden by the weight cient to affidavit executed her with marriage that she entered into The BIA on the fact Villafranco. focused BIA refer- good faith. The Villafranco and Alvarado were that both Villafranco the the and that enced decision of IJ noted they by to other individuals when testimony presented married the the IJ found remarry each other and had to married The BIA recited Alvarado to be credible. respective divorces. Addition- by after of found the IJ and many the facts concluded, contrary the the BIA to ally, not the confirmed that had determined couple finding, factual that the lived clearly IJ’s erroneous. factual to be only year. However, concluded, The BIA stat- together one very together, the little couple ed that “did by the [A]pplying the facts as found church the other than attend and husband law, Immigration we do not Judge the driving respondent the work.” her respondent find that the met burden the explained BIA also evidence establishing her to Mr. support not the conclusion affidavits did was entered into in apart due the “fell accepting Immigration faith. Even the drinking According- problem.” husband’s credibility determina- Judge’s favorable ly, Alvarado not the BIA found that did tion, testimony the we do find that ap- her burden and sustained DHS’s meet sufficiently compel- and evidence were peal. respondent’s burden ling to meet the reconsider, that she and Mr. Villafranco proving Alvarado filed motion to together, es- life correctly intended the BIA failed arguing inference light of the adverse “clearly pecially the standard of apply erroneous” statement executed by raised the sworn required by 8 C.F.R. review Gonzales, respondent’s Cir.2007). the former husband. noted in February questions As we our decision of We review of law de novo. Id. 23, 2007, testimony the respon- the
dent into the good herself calls Analysis III. of marriage. nature the A. Jurisdiction The BIA noted did couplе prior marriage, date there was no DHS claims that this Court has no they evidence that ever “romantically were jurisdiction to consider involved,” they did not celebrate their wed- review, because the BIA’s denial friends, ding family with there no good discretionary faith waiver awas deci celebrations, shared holidays, sion statutorily reserved to the Attorney vacations, couple did not share a General immune appellаte from scruti bedroom, age signifi- difference was ny. the challenges raised cant, together only resided “for 2 Alvarado constitute questions of law and years and months.” The BIA concluded properly constitutional claims before this the evidence showed that the mar- pursuant Court REAL Act ID riage simply one convenience be- 2005, notwithstanding jurisdictional tween friends. limitations contained within the INA. The BIA also documentary held that the 1252(a)(2)(B)(ii) Sеction provided was “insuf- INA proscribes judicial “any review of ... ficient in- respondent to establish that the decision or action of Attorney General tended life with to establish a Mr. Villaf- ... authority for which is specified ranco[,]” because their assets were not subchapter under to be the discre substantially intermingled, there was no tion of Under General[.]”3 evidence that Villafranco was made co- INA, granting of home, owner of utility and the for an individual is reserved to the discre bills did not include both of their names. *7 tion of Attorney General. See 8 U.S.C. Thus, the BIA found 1186a(c)(4); § Ashcroft, see also v. Assaad good was not entered into in faith. Alva- 471, (5th Cir.2004). 378 F.3d 475 The petition rado a timely filed for review. Attorney General does not have unfettered discretion; instead, such discretion is
II.
Standard
Review
only
available
if the “alien demonstrates
jurisdiction
This Court lacks
that”
into
was entered
in
discretionаry
review the
decisions of the
good faith.4
1252(a)(2)(B)(ii).
BIA.
§
See 8 U.S.C.
We
findings
review the factual
of the BIA
The
ID
clearly per-
REAL
Act of 2005
standard,
under the substantial
appellate jurisdiction
mits
over Alvarado’s
only
reversing
compels
when the
petition.
That amendment
to the INA
a contrary
Nakimbugwe
result.
scope
See
v.
clarified
jurisdic-
of the statute’s
Comm.,
471,
jurisdiction-stripping
486,
provision
part
This
is
nation
525 U.S.
119 S.Ct.
936,
(1999).
Illegal Immigration
of the
Reform and Immi-
234
157,
States,
07-4561,
Fed.Appx.
301
fol-
No.
by adding the
provisions
tion-stripping
2008)
(3d
Dec.1,
(unpublished
Cir.
158-59
lowing
§to
1252:
language
jurisdiction, because the
(finding
opinion)
(B)
(C), or
subparagrаph
or
Nothing
used
question of whether
chapter
provision of this
other
any
overturning
the IJ’s
wrong standard
section)
(other
limits or
this
which
than
law
was a
findings
factual
review,
con-
judicial
shall be
eliminates
fact).
rather than
review constitu-
precluding
as
strued
proper-
for review is
petition
law raised
or
questions
tional claims
raises chal-
ly before this Court. She
an
review filed with
upon
review
lenges
to the standard of
appeals
in accor-
appropriate court
findings
BIA the
of the IJ
factual
this
dance with
section.
finding
BIA erred in
and contends that the
1252(a)(2)(D).
has
§
This Court
8 U.S.C.
estab-
legally insufficient to
her evidence
...
re-
“The REAL ID Act
explained,
presents
She
a consti-
good
lish
faith.
also
review
bars
direct
jurisdictional
moves
challenge to the admission of
tutional
removal, depor-
of law in final
questions
nor
affidavit. Neither the IJ
tation,
Rodriguez-
orders.”
and exclusion
discretionary
BIA made the
decision
(5th
Gonzales,
316,
427 F.3d
319
Castro v.
waiv-
deny
hardship
Alvarado a
Cir.2005);
also Larin-Ulloa
Gon-
see
Instead,
the BIA held
er.
Cir.2006)
zales,
F.3d
460-61
statutorily
ineligible
jurisdiction
this
has
(noting that
Court
as a matter of
waiver because
failed
for review of constitutional
petitions
over
evidence of
law marshal sufficient
law). Although
faith. These are
and constitutional
questions
claims
or
reserved
unrelated
the discretion
11, 2005,
issues
May
Act toоk
REAL ID
effect
ju-
Accordingly,
General.
retroactively to
applies
this amendment
proper.
is
risdiction
REAL
petition for review. See
109-13,
ID Act of
Pub.L. No.
B. Good Faith Determination
106(b),
(making
§
119 Stat.
BIA’s
consideration
1252(a)(2)(D) ap-
§
containing
amendment
credibility
of fact and
deter
IJ’s
“to cases in which
final admin-
plicable
review.
is limited to a clear error
minations
removal, deportation,
order of
istrative
1003.1(d)(3)(I),
Under C.F.R.
before, on,
or after
еxclusion
issued
find
“engage
cannot
de novo review of
division”);
the enactment of
the date of
immigration
ings of fact determined
at 319
Rodriguez-Castro,
see
also
Instead,
those
judge.”
the BIA reviews
*8
1252(a)(2)(D)
(observing
applies
§
1n.
determinations,
facts, including credibility
retroactively).
clearly
only to
whether
are
determine
agree
We
with our sister circuits
may
Id.
BIA
not over
erroneous.
The
1252(a)(2)(D) permits appellate
§
review
findings “simply
an
factual
be
turn
IJ’s
In
by
the legal
of
issues raised Alvarado.
the
weighed
have
cause the Board would
deed,
Act,
“predi
the REAL ID
the
under
facts
differently
decided the
evidence
or
question of
the IJ
legal
cate
whether
it
the
differently had
factfinder.”
been
in de
law to
facts
properly applied the
the
Procedur
Immigration Appeals:
of
Board
eligibility for discre
termining the alien’s
Improve
Management,
al Reforms to
Case
2002)
рroper
is a
of law
tionary
relief’
54,878, 54,889
26,
(Aug.
Fed.Reg.
67
Nguyen
ly
City,
in a
for review.
City
raised
v.
Bessemer
(citing Anderson
of
(8th
853,
N.C.,
564,
1504,
573,
Cir.
S.Ct.
84
Mukasey,
v.
522 F.3d
854-55
470 U.S.
(1985)).
are
2008);
‘Where there
L.Ed.2d 518
Gen.
the United
Oei
of
evidence,
two
of
permissible views
the
the
also Chen
Whether to be fact that is generally question v. the ad- court but not this resolved possible that It is process.1 ministrative AUCTIONS, INC., DURHAM remаnd, may apply the correct on Defendant-Appellee. either reach standard of review far it has thus No. 08-60898. conclusion that same for the IJ remand to properly reached or Appeals, United States Court not it is further Because proceedings.2 Fifth Circuit. pre- this province within the court remand, I BIA’s ordain the conclusion Oct. majority’s state- panel not in the join do “[cjorrect application of ments that not have led
clear standard could error that the
the BIA’s conclusion evidence good to establish a
legally insufficient clear that the BIA
marriage,” and is “[i]t fact; accept most of the
otherwise, have it could not reached at least did.” There is
conclusion at issue
some weight of
was not in faith. While the may present record conclusion, court opposite
lead jurisdiction have to make essen-
does not the mar-
tially a factual determination that con- "in I
riage was faith. therefore judgment only.
cur in the Gonzales, Ramirez-Peyro 477 F.3d Chertoff, 2. See v. Ayanbadejo 1. See Cir.2008) Cir.2007) ("Although Ayan- (8lh ("Although we con- n. 11 badejos re- argue for that the USCIS’s basis appear apply the Board did not clude that adjust fusing status was a John's engaged in proper review and standard of pre- non-viable conclusion factfinding, decline we nevertheless its own change-in-status requested, cluded the John engage in our own Ramirez's invitation to predicate the USCIS's determination implication analysis facts Ayanbadejos had a bona fide whether the given .... The Board should be his claim law, fact, marriage was a duty discharge statutory opportunity to its qualify does therefore findings for clear error review the IJ’s 1252(a)(2)(D) exception § proceedings if the IJ for further remand to 1252(a)(2)(B) provi- jurisdiction stripping appropriate.”). sion.”).