Iliev v. Holder, 09-9517.

• Decision Date: 19 July 2010
• Docket Number: No. 09-9517.,09-9517.
• Parties: Ilia Todorov ILIEV, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

613 F.3d 1019

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.

Jeff D. Joseph (Reed H. Allen with him on the briefs), Joseph Law Firm, Aurora, CO, for Petitioner.

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.

Before HARTZ, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

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 8 U.S.C. § 1186a(c)(4)(B). He claims the BIA applied the wrong legal standard when reviewing his waiver request and failed to credit fully the evidence he presented. Our review confirms, however, that the BIA applied the correct legal standard; beyond reaching and passing on that question, however, we find that we lack statutory authority to entertain the balance of Mr. Iliev's challenge. We thus decline to overturn the Board's decision, denying in part and dismissing in part Mr. Iliev's petition for review.

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 8 U.S.C. § 1186a(a)(1). Two years later, Mr. Iliev and Ms. Nunez jointly filed another petition, as required by 8 U.S.C. § 1186a(c)(1), seeking to have Mr. Iliev's conditional status lifted.

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 8 U.S.C. § 1186a(b)(1)(A)(ii). Because of this, Mr. Iliev filed a new petition seeking unconditional permanent resident status based on one of § 1186a(c)(4)'s so-called “hardship waiver” provisions. In particular, he sought to take advantage of § 1186a(c)(4)(B). That provision permits the Attorney General to grant an alien full, unconditional permanent resident status even if his marriage ended in divorce so long as, among other things, the marriage “was entered into in good faith.” See 8 U.S.C. § 1186a(c)(4)(B).

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 § 1186a(c)(4)(B). After an evidentiary hearing, the IJ made certain credibility determinations adverse to Mr. Iliev, and then proceeded to weigh the evidence he found credible, all before ultimately finding that Mr. Iliev had not entered into his marriage to Ms. Nunez in good faith. The IJ thus denied Mr. Iliev's request for a hardship waiver and proceeded to order him removed to Bulgaria. In a brief order issued by a single Board member, the BIA affirmed the IJ's decision. See 8 C.F.R. § 1003.1(e)(5). In doing so, the Board explained its view that the IJ “made reasonable inferences from the record as a whole” and that the “record contains too many questions regarding [Mr. Iliev's] intent to conclude that he met his burden to show that he entered the marriage in good faith.” BIA Order at 2.

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 argues that the Board applied the wrong legal standard when evaluating his eligibility for a good faith marriage waiver. Second, he submits that the Board failed to take full account of the evidence he presented supporting his waiver request. ¹ In reply, the government suggests that we lack jurisdiction to review Mr. Iliev's petition and that, in any event, it is meritless.

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 8 U.S.C. § 1252(a)(2)(B)(ii). Part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009, this provision denies federal courts authority to review certain discretionary immigration decisions by the Executive Branch, stating that “no court shall have jurisdiction to review ... decision[s] or action[s] of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” ² As the Supreme Court has explained, “many provisions of IIRIRA,” including surely this one, “are aimed at protecting the Executive's discretion from the courts-indeed, that can fairly be said to be the theme of the legislation.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (emphasis omitted).

Second is 8 U.S.C. § 1186a(c)(4). It is part of the “subchapter” referenced in § 1252(a)(2)(B)(ii). See Atsilov v. Gonzales, 468 F.3d 112, 115 (2d Cir.2006). And it provides that the question whether to “remove the conditional basis of the permanent resident status” of a divorced alien who “demonstrates that ... the qualifying marriage was entered into in good faith by the alien spouse,” is among those decisions entrusted by Congress to the “Attorney General's discretion.” 8 U.S.C. § 1186a(c)(4)(B). This section also 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.” Id. § 1186a(c)(4).

Third is 8 U.S.C. § 1252(a)(2)(D). Enacted nine years after IIRIRA, as part of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302, this provision clarifies that IIRIRA does not pursue its discretion-preserving “theme” at all costs and without exception. Relevant to our analysis here, § 1252(a)(2)(D) expressly instructs us that “[n]othing in subparagraph (B) [of § 1252(a)(2) ] ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” So it is that at least these two types of challenges remain within our purview.

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, § 1252(a)(2)(B)(ii) and § 1186a(c)(4) together deny us jurisdiction to review petitions seeking to attack credibility determinations or the weight given to the evidence by the Attorney General (or his designee). At the most general level, the same provisions also deny us jurisdiction to review the Attorney General's ultimate decision whether or not to grant a hardship waiver to an eligible alien. Yet, between these two levels of generality, § 1252(a)(2)(D) clarifies that § 1252(a)(2)(B) does not deprive us of jurisdiction to review whether the Attorney General's actions, in the course of evaluating hardship waiver requests, implicate constitutional claims or legal questions.

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 § 1252(a)(2)(D) and that statu...