Ilia Todorov ILIEV, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
No. 09-9517.
United States Court of Appeals, Tenth Circuit.
July 19, 2010.
Lance L. Jolley (David V. Bernal, Assistant Director with him on the brief), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
Ilia Iliev, a citizen of Bulgaria, asks us to overturn a Board of Immigration Appeals (“BIA” or “Board“) order holding him ineligible for a hardship waiver under
I
Mr. Iliev entered the United States in 1996 on a tourist visa. After the visa expired, Mr. Iliev remained in the country illegally. Eventually, he married Cathy Nunez and, shortly after their marriage, the couple filed a petition seeking lawful permanent resident status for Mr. Iliev. In due course, the petition was granted and, in 2001, Mr. Iliev was admitted to the United States on a conditional basis. See
Before that petition could be processed, however, the couple divorced. Under federal law, an alien‘s conditional permanent resident status ceases if his qualifying marriage ends in divorce, rendering him potentially removable from the country. See
Mr. Iliev‘s new petition met with no success. The Citizenship and Immigration Services denied the petition, terminated Mr. Iliev‘s conditional permanent resident status, and served him with a notice to appear for removal proceedings before an Immigration Judge (“IJ“). During his removal proceedings before the IJ, Mr. Iliev renewed his request for a hardship waiver under
II
Mr. Iliev now petitions us to review and undo the Board‘s order. His petition proceeds in two essential movements—one legal and one factual. First, Mr. Iliev ar
We hold that we possess jurisdiction to review Mr. Iliev‘s petition to the extent it contends the BIA applied an incorrect legal rule to his case, but that this challenge fails on the merits. At the same time, we hold that we lack jurisdiction to review the balance of Mr. Iliev‘s petition because deciding it would require us to pass on the BIA‘s credibility determinations and the weight the Board gave to certain pieces of evidence—something Congress has expressly denied this court the power to do. In reaching these holdings, we first outline the law governing our analysis (Section II.A) before turning to its application in this case (Section II.B).
A
The legal rules applicable to this case are found in three separate but related statutory provisions.
First among these is
Second is
Third is
Based on the plain language of and interaction between these three provisions, a few things can be said about our legal authority, and its limits, in cases like the one now before us. At the most particular level,
So, for example, when the Attorney General‘s determination that an alien is ineligible for a hardship waiver rests on an error of law (and not on credibility determinations or the weight given to competing evidence), we may say so and grant the petition for review. But the ultimate decision on remand whether or not to grant a waiver, after the petitioner‘s legal eligibility for the waiver has been established by a court of law, remains a discretionary one entrusted to the Attorney General. See, e.g., Contreras-Salinas v. Holder, 585 F.3d 710, 713 (2d Cir.2009) (“[W]e lack jurisdiction to review the decision to deny a good faith marriage waiver where eligibility for the waiver has been established but the agency nevertheless has exercised its discretion to deny relief.“). On these general principles, the courts of appeals are in harmony. See, e.g., Contreras-Salinas, 585 F.3d at 713-14; Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir.2009); Nguyen v. Mukasey, 522 F.3d 853, 854-55 (8th Cir.2008); Cho v. Gonzales, 404 F.3d 96, 101–02 (1st Cir.2005); Roldan v. Att‘y Gen. of U.S., 2010 WL 1980222 (3d Cir.2010) (unpublished); Roos v. U.S. Att‘y Gen., 167 Fed.Appx. 752 (11th Cir.2006) (unpublished).
In an effort to suggest otherwise, the government cites us to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir.2004), and Assaad v. Ashcroft, 378 F.3d 471 (5th Cir.2004). In the government‘s view, these cases show that the Third and Fifth Circuits believe that courts may never review the BIA‘s hardship waiver decisions—even when those decisions implicate questions of law or constitutional claims. What the government overlooks, however, is that both of the cases it cites and relies on so heavily predate
Where the government mistakenly seeks to limit our jurisdiction, Mr. Iliev mistakenly seeks to expand it. Citing the Ninth Circuit‘s decision in Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1143-47 (9th Cir. 2005), he argues that we may review not just petitions raising legal questions and constitutional claims but also ones challenging the BIA‘s credibility determinations. We readily admit Oropeza-Wong can be read to suggest as much, but it‘s not entirely clear whether that case even remains good law in the Ninth Circuit. See Singh v. Holder, 591 F.3d 1190, 1195 n. 3 (9th Cir.2010). And even if it does remain good law there, it has never been the law here. Like other of our sister circuits before us, we reject Oropeza-Wong‘s suggestion that credibility determinations or the weight given to competing evidence are within our jurisdictional ken; Congress has specifically and clearly denied us authority to review those questions. See, e.g., Contreras-Salinas, 585 F.3d at 714 n. 4.
Oropeza-Wong errs by elevating legislative history above express textual direction. In Oropeza-Wong, the Ninth Circuit concluded that the congressional record leading to the enactment of
Confirming our reading of the plain text is the statute‘s structure. If Congress had wished to ensure judicial review of credibility determinations as Oropeza-Wong seems to suppose, it easily “could have done so by specifically and explicitly exempting” such decisions “from the operation of the jurisdiction-stripping provisions of IIRIRA.” Perales-Cumpean v. Gonzales, 429 F.3d 977, 983 (10th Cir.2005). In fact, Congress showed its awareness of just this possibility by exempting other discretionary decisions by the Attorney General (e.g., those involving certain asylum applications) from
With the legal principles governing our review now in hand, we can turn to the task of applying them to Mr. Iliev‘s case, recalling that he essentially raises two arguments before us. He claims, first, that the BIA applied the wrong legal standard to his hardship claim. Second, he argues that the BIA erred in its view of the evidence. We address each point in turn.
1
Mr. Iliev‘s legal argument is straightforward enough. He submits that the BIA incorrectly applied a presumption of fraud when assessing his hardship waiver petition. As he acknowledges, to become eligible for a hardship waiver under
Although we have authority to entertain this argument, it fails on the merits. To be sure, Mr. Iliev‘s claim implicates a pure question of law. And, in
Like the Board‘s decision itself, the administrative cases the Board cited and relied upon articulate the very (and correct) legal standard that Mr. Iliev urges. Mr. Iliev argues that the Board erred by relying on Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983) and Matter of Patel, 19 I. & N. Dec. 774 (BIA 1988), but both cases correctly explain that, in hardship waiver cases like his, “[t]he central [legal] question is whether the bride and groom intended to establish a life together at the time they were married.” Matter of Laureano, 19 I. & N. Dec. at 2-3; see also Matter of Patel, 19 I. & N. Dec. at 783-84.3
Both cases, moreover, cited and relied on the two hardship waiver precedents—Matter of McKee, 17 I. & N. Dec. 332 (BIA 1980) and Bark v. INS, 511 F.2d 1200 (9th Cir.1975)—that Mr. Iliev himself says properly control his case. Compare Reply Br. at 16 (“[T]he standard the Board should have employed here is Matter of McKee ....“), and Opening Br. at 33 (”Matter of McKee reaffirmed Bark v. INS ....“), with Matter of Laureano, 19 I. & N. Dec. at 2-3 (citing Matter of McKee and Bark), and Matter of Patel, 19 I. & N. Dec. at 783-84 (same). On all fronts, then, Mr. Iliev‘s claim fails; the Board‘s decision is legally sound.4
2
Mr. Iliev‘s second argument focuses not on the legal standard the BIA applied to his case but on its assessment of the facts. In its order, the Board cited five facts supporting its conclusion that Mr. Iliev hadn‘t entered into his marriage in good faith. It emphasized that: (1) Mr. Iliev failed to include his wife on the title of the property they claimed to be their marital home; (2) he didn‘t attend his mother-in-law‘s funeral; (3) he didn‘t know the cause of his mother-in-law‘s long-term illness; (4) he had established relationships with other women during the marriage; and (5) “[m]ost compelling[ly],” he and his wife lived apart, often apparently in separate states, during the course of their marriage. BIA Order at 2.
Before us, Mr. Iliev challenges the BIA‘s reliance on these five facts, complaining that the Board failed to consider and appreciate fully his competing evidence on each point. For example, he draws our attention to his testimony that: (1) the couple made a joint decision not to include Ms. Nunez on the title to their home for economic reasons; (2) he didn‘t attend his mother-in-law‘s funeral because of his personal phobia of funerals; (3) he couldn‘t remember his mother-in-law‘s illness because four years had passed since her death and the beginning of his hearing; (4) his relationship with another woman was a drunken mistake; and (5) the couple really did live together, at least for some period of time. In Mr. Iliev‘s view, the BIA gave too short a shrift to these explanations for his actions.
Having said what Mr. Iliev‘s claim is, it is equally important to say what it is not. In the first place, it is not a complaint that the five facts the BIA cited to support its decision, if true, are insufficient as a matter of law to warrant the denial of a hardship waiver application. Neither is it a complaint that the government‘s evidence, when credited fully and viewed in the light most favorable to the government, fails to establish each of these five facts. Put differently, Mr. Iliev doesn‘t challenge the legal sufficiency of the government‘s evidence, taken on its own terms, to warrant the denial of a hardship waiver under the standard set forth in
In the second place, Mr. Iliev‘s claim cannot really even be a complaint that the BIA failed to consider the explanations he offered for his conduct. In its order, the BIA indicated that it did consider Mr. Iliev‘s proof, expressly acknowl
Instead, Mr. Iliev‘s complaint before us can be no more than that the Board failed to catalogue and refute each particular explanation he offered for his conduct. And, to be sure, Mr. Iliev pursues this line, complaining that the Board acted in summary fashion, rejecting his proof with a sweep of the hand rather than a meticulous review of his various explanations for his conduct. But the difficulty with this attack is that the BIA rested its decision on its judgment that the IJ reasonably found Mr. Iliev‘s evidence not credible. That ground for decision encompassed all of Mr. Iliev‘s testimony. Indeed, the IJ expressly said as much. So, though the BIA‘s opinion might not have detailed and discussed each of Mr. Iliev‘s various explanations, its opinion reflects that they were considered and uniformly rejected for lack of credibility.
At bottom, then, however he might try to parse it, Mr. Iliev‘s problem with the BIA‘s disposition can boil down to no more than a disagreement with its endorsement of the IJ‘s credibility determination. And this is something we may not second guess. As we have explained,
In this respect, our case finds a near perfect reflection in Contreras-Salinas. There, the petitioner, recognizing the same potential jurisdictional pitfall that confronts Mr. Iliev, assiduously sought to avoid characterizing her petition as one challenging credibility determinations or the weight assigned to competing evidence. Instead, she sought to characterize her claim as alleging a failure by the BIA and IJ to consider various pieces of “material evidence” she had produced tending to show that she entered into her marriage in good faith. 585 F.3d at 714. And this, she argued, was a legal claim over which the court had jurisdiction.
The Second Circuit, however, declined to pass on that question. It concluded that, “regardless of how petitioner characterize[d] her claim, she [was] essentially challenging the agency‘s credibility determinations and the relative weight it accorded to evidence.” Id. at 715. The court acknowledged that the BIA and IJ had not “expressly parse[d] or refute[d] on the record each individual argument or piece of evidence offered by the petitioner.” Id. at 714 (quoting Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir.2006)). But this, the Second Circuit explained, wasn‘t necessary because it was “apparent from the IJ‘s decision that he found that evidence to be not credible and outweighed” by other evidence. Id. at 715. For this reason, the court held that it lacked statutory authority to entertain her claim.
Exactly the same might be said here. Though Mr. Iliev argues that the BIA and IJ failed to consider specific pieces of evidence, it is apparent from their decisions that both the BIA and IJ did consider his evidence and rejected it as not credible. And this credibility determination is, at the end of the day, the real nub of Mr. Iliev‘s complaint. Tellingly, he sometimes acknowledges as much in his own briefing, admitting that his problem isn‘t with whether his evidence was considered but with the weight assigned to it by the BIA and IJ. See, e.g., Opening Br. at 31 (“The BIA erred ... by ... focusing on minimal adverse evidence, and unreasonably discounting the overwhelming evidence that Mr. Iliev presented showing a good faith relationship with Ms. Nunez.“); id. at 35 (“The [BIA] decision is severely deficient in that the facts referenced are, when properly considered in context, not as significant as the decision so characterizes.“); id. at 37 (“The financial evidence supporting Mr. Iliev‘s application far outweighs the questionable negative inference that the BIA makes in its decision.“); id. at 41 (“The amount of documentary evidence of cohabitation is overwhelming in the face of the evidence to the contrary.“). We simply are not empowered to entertain, let alone vindicate, arguments of this sort, however they may be characterized or packaged.
* * *
In the end, our resolution of this case comes in two parts. First, to the extent that Mr. Iliev‘s petition for review seeks to challenge the legal standard the BIA employed to analyze his hardship waiver application, it is denied on the merits. Second, the balance of Mr. Iliev‘s petition is dismissed because it seeks review of matters that fall beyond the jurisdiction of this court.