Cho v. Gonzales

• Decision Date: 19 April 2005
• Docket Number: No. 04-1437.,04-1437.
• Citation: 404 F.3d 96
• Parties: Agnes CHO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — First Circuit

404 F.3d 96

Agnes CHO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.^*

No. 04-1437.

United States Court of Appeals, First Circuit.

Heard January 7, 2005.

Decided April 19, 2005.

Ilana Greenstein with whom Harvey Kaplan, Jeremiah Friedman, Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP were on brief, for petitioner.

Jamie M. Dowd, Attorney, Office of Immigration Litigation, Civil Division, with whom Peter D. Keisler, Assistant Attorney General, and David V. Bernal, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Iris Gomez, Massachusetts Law Reform Institute, and Gail Pendleton, National Immigration Project of the National Lawyers Guild, on brief for The Family Violence Prevention Fund, Massachusetts Law Reform Institute, Inc., National Immigration Project of the National Lawyers Guild and Greater Boston Legal Services, amici curiae.

Before BOUDIN, Chief Judge, TORRUELLA, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Under the Immigration and Nationality Act, an alien who marries a United States citizen is entitled to petition for permanent residency on a conditional basis. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i) & (ii), and 1186a(a)(1). Within 90 days of the second anniversary of the conditional admission, the couple (if the citizen is not deceased) may jointly petition for the removal of the condition. See 8 U.S.C. §§ 1186a(c)(1)(A) & 216(d)(2)(A). Each such petition is required to state, inter alia, that the marriage has not been judicially annulled or terminated, and that it was not entered into for the purpose of procuring the alien spouse's admission as an immigrant. See 8 U.S.C. § 1186a(d)(1)(A)(i)(II) & (III).

If the couple has divorced within two years of the conditional admission, the alien spouse may still apply to the Attorney General to remove the conditional nature of her admission by granting a "hardship waiver." 8 U.S.C. § 1186a(c)(4). Insofar as is relevant here, the statute authorizing the Attorney General to grant such applications provides:

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 [conditions described above] if the alien demonstrates that . . .

(B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the [conditions described above]. . . .

In acting under applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The 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)(B).

On September 15, 1997, petitioner Agnes Cho, a Chinese citizen of Burmese descent, married a United States citizen of Burmese descent. Subsequently, Cho secured conditional admission as a permanent United States resident. The couple divorced within two years of the marriage, and Cho applied to the Attorney General for a hardship waiver. But the Attorney General, acting first through an INS district director, then through an immigration judge, and finally through the Board of Immigration Appeals, denied Cho's application on the ground that she failed to establish that she had married in good faith and thus failed to establish eligibility for a hardship waiver. Cho petitions to vacate the order of removal that followed these determinations, arguing, inter alia, that the record lacks substantial evidence to support the Attorney General's ruling. The Attorney General responds that we lack jurisdiction to entertain this petition and, alternatively, that the removal order is grounded in substantial evidence.

We begin with the jurisdictional issue. The Attorney General argues that we lack power to consider the petition under a permanent, jurisdiction-stripping statute enacted into law as part of the Immigration Reform and Immigrant Responsibility Act of 1996. In relevant part, the statute reads:

Notwithstanding any other provision of law, no court shall have jurisdiction to review —

(i) any judgment regarding the granting of relief under [certain statutory grants of discretionary authority to the Attorney General not here relevant], or

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under [another statute not here relevant].

8 U.S.C. § 1252(a)(2)(B). The parties agree that the Attorney General's rejection of an application for a hardship waiver under 8 U.S.C. § 1186a(c)(4)(B) is a decision made pursuant to the relevant statutory "subchapter" mentioned in subparagraph (ii). They also agree that the Attorney General's general authority to grant a hardship waiver under § 1186a(c)(4)(B) is specified to be within the Attorney General's discretion. But they disagree over whether these two facts resolve the jurisdictional issue.

The Attorney General says that they do. He primarily argues that the "decision or action" referred to in 8 U.S.C. § 1252(a)(2)(B)(ii) is his final order, which he says is his denial of the hardship waiver, and not the threshold eligibility ruling — that Cho failed to prove that she married in good faith — on which that order was based. And because this "decision or action" involves the withholding of discretionary relief, the argument goes, we have no power of review. Cf. Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir.2003) (interpreting a similar jurisdiction-stripping provision of the IIRIRA's transitional rules, IIRIRA § 309(c)(4)(E), and explaining that, absent an all-or-nothing approach, "there would be no jurisdiction if the agency is right but jurisdiction when it errs; [and] that would be a back door assertion of jurisdiction to review every decision, and an effective nullification of the statute"). Cho counters that the "decision or action" referred to in the statute is not the Attorney General's discretionary decision to withhold a hardship waiver, but the specific and non-discretionary (or so she argues, see infra) ruling upon which that decision depended and which she challenges in her petition — i.e., that Cho is not within the class of aliens entitled to apply to discretionary relief under 8 U.S.C. § 1186a(c)(4)(B) because she failed to establish that she married in good faith.

We think that Cho has the better of this argument. We start with the fact that the Attorney General's position proves too much. Even if we were to accept for the sake of argument that the final agency order at which the petition is directed, and not the eligibility ruling leading to the order, is the "decision or action" to which 8 U.S.C. § 1252(a)(2)(B)(ii) refers, the final agency order in this case would not be the Attorney General's rejection of Cho's application for a hardship waiver. Rather, it would be the removal order itself, which is the final decision of the Attorney General that we have jurisdiction to review under 8 U.S.C. § 1252(a)(1). See Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir.2004). And the removal order is not a decision or action the authority for which is specified by the relevant statute to be in the discretion of the Attorney General. See id.

Accordingly, and contrary to the position he takes in his brief, the Attorney General needs us to look to the rationale underlying his order, and not simply the nature of the order itself, if 8 U.S.C. § 1252(a)(2)(B)(ii) is ever to preclude court review of a final removal order. And in this case, the rationale for the final removal order was not that the Attorney General, in an exercise of the discretion conferred upon him by 8 U.S.C. § 1186a(c)(4)(B), saw fit to reject Cho's application for a hardship waiver; it was that Cho is ineligible as a matter of law for a discretionary hardship waiver under § 1186a(c)(4)(B) because she failed to establish that she married in good faith. So even if we assume arguendo that the "decision or action" to which § 1252(a)(2)(B)(ii) refers in the context of this case is not the removal order, but is the specific decision leading to the removal order, we would not accept the Attorney General's characterization of that decision as involving a discretionary denial of a hardship waiver to an eligible alien under § 1186a(c)(4)(B).

Treating the Attorney General's ineligibility ruling as the relevant "decision or action" (again, assuming for the sake of argument that the relevant "decision or action" is not the removal order itself) is consistent with the approach we have taken in other cases interpreting similar jurisdiction-stripping provisions of the IIRIRA. In those cases, we have consistently emphasized that, in deciding whether a jurisdiction-stripping statute applies, we should engage in a precise reading of both the agency decision and the petition. See Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir.2005) (interpreting 8 U.S.C. § 1252(a)(2)(B)(i)); Prado v. Reno, 198 F.3d 286, 288 (1st Cir.1999) (also interpreting § 1252(a)(2)(B)(i)); Bernal-Vallejo v. INS, 195 F.3d 56, 61-62 (1st Cir.1999) (interpreting IIRIRA § 309(c)(4)(E)).

The reasons for reading precisely provided in those cases pertain here as well. First, if Congress had intended to preclude all court review of agency decisions involving hardship waiver applications, it is hard to see why it would not have said so more clearly and categorically, using language such as that in, for example, IIRIRA § 309(c)(4)(G) ("[T]here shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed [certain criminal offenses]") — a transitional rule which we have read to preclude all court...