Johns v. Holder

• Decision Date: 02 May 2012
• Docket Number: No. 11–3011.,11–3011.
• Citation: 678 F.3d 404
• Parties: Tatiana JOHNS, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

678 F.3d 404

Tatiana JOHNS, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 11–3011.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2012.

Decided and Filed: May 2, 2012.

ARGUED:Maris J. Liss, George P. Mann and Associates, Farmington Hills, Michigan, for Petitioner. Bernard A. Joseph, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Maris J. Liss, George P. Mann, George P. Mann and Associates, Farmington Hills, Michigan, for Petitioner. Bernard A. Joseph, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, SUTTON and KETHLEDGE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Tatiana Johns, a citizen of Russia, seeks review of a final order of removal issued by the Board of Immigration Appeals. She challenges the Board's refusal to grant a “hardship waiver,” which would allow her to stay in the country even though her marriage to Peter Rekshan, an American citizen, ended in divorce. 8 U.S.C. § 1186a(c)(4). Because we lack jurisdiction to consider the bulk of Johns's challenges to the Board's conclusion that she did not marry Rekshan in good faith, and because her remaining legal challenges to the Board's order lack merit, we deny the petition for review.

I.

Tatiana Johns met Peter Rekshan, 28 years her senior, when he visited St. Petersburg, Russia in 1991. The two married in October 1998, and Johns moved to the United States one month later. Under the immigration laws, Johns became a lawful permanent resident on a conditional basis. 8 U.S.C. § 1186a(a)(1). To remove that status and to stay in the country permanently, Johns was required to submit a joint petition with Rekshan two years after her initial entry swearing that their marriage was legal, that it had not been annulled or terminated, and that they had not married each other for immigration purposes. Id. § 1186a(c)(1)(A), (d)(1)(A), (d)(2)(A). Johns and Rekshan submitted the required joint petition, but they divorced before it could be processed. The divorce ended Johns's conditional permanent residency, id. § 1186a(b)(1)(A), (c)(2)(A), potentially subjecting her to removal.

Johns sought a “hardship waiver.” The waiver allows the Attorney General, in his discretion, to grant unconditional permanent residency to an alien whose marriage to a U.S. citizen has ended if the alien demonstrates that the marriage “was entered into in good faith.” Id. § 1186a(c)(4)(B). The Attorney General has delegated his authority to grant hardship waivers to the Board of Immigration Appeals. See Kucana v. Holder, 558 U.S. ––––, 130 S.Ct. 827, 832, 175 L.Ed.2d 694 (2010). After a hearing, an immigration judge found that Johns had not married Rekshan in good faith but had done so only to enter the United States. The judge denied Johns's request for a hardship waiver and ordered her removed to Russia. The Board affirmed.

II.

A provision of the immigration laws “aimed at protecting the Executive's discretion from the courts” constrains our jurisdiction to review certain aspects of the Board's order. Reno v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 486, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The provision divests jurisdiction to review any “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.” 8 U.S.C. § 1252(a)(2)(B)(ii). At the same time this provision bars judicial review of discretionary decisions, it authorizes review of “constitutional claims or questions of law.” Id. § 1252(a)(2)(D).

The jurisdiction-stripping provision applies to hardship waivers, which are includedin the relevant subchapter of Title 8. Jebeili v. Holder, 421 Fed.Appx. 547, 548–49 (6th Cir.2011). Whether we have jurisdiction to review the Board's order thus turns on which aspects of the decision Johns asks us to review. To the extent she seeks review of a discretionary decision, we lack jurisdiction. To the extent she seeks review of questions of law or constitutional claims, we have jurisdiction.

Johns does not deny that we lack jurisdiction to review the hardship-waiver decision, which the statute vests “in the Attorney General's discretion.” 8 U.S.C. § 1186a(c)(4); Jebeili, 421 Fed.Appx. at 548–49. She claims instead to be challenging the Board's decision that she is not eligible for a waiver because she did not marry Rekshan in good faith. But when it comes to deciding whether an alien is eligible for a waiver, the statute lodges “[t]he determination of what evidence is credible and the weight to be given that evidence ... within the sole discretion of the Attorney General.” 8 U.S.C. § 1186a(c)(4). Although we may evaluate certain questions of law wrapped up in the eligibility determination—whether the Board applied the correct legal test for a good-faith marriage, for example—we do not have jurisdiction to review the Board's assessment of the weight or credibility of the evidence. See Osei v. Holder, 462 Fed.Appx. 559, 560–61, No. 10–4051, 2012 WL 516162, at *1 (6th Cir. Feb. 16, 2012); see also Iliev v. Holder, 613 F.3d 1019, 1023–24 (10th Cir.2010); Contreras–Salinas v. Holder, 585 F.3d 710, 715 (2d Cir.2009); Alvarado de Rodriguez v. Holder, 585 F.3d 227, 233–34 (5th Cir.2009); Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir.2009); Cho v. Gonzales, 404 F.3d 96, 101–02 (1st Cir.2005). But see Oropeza–Wong v. Gonzales, 406 F.3d 1135, 1146 (9th Cir.2005) (concluding that Congress intended the provision to function “as a requirement that immigration officials liberally admit evidence, not as a bar to judicial review”).

The problem for Johns is that she aims the bulk of her fire not at the legal standards the Board applied but at its assessment of her credibility and the way it weighed the evidence. Consider these arguments: (1) the immigration judge did not fully consider certain pieces of evidence, such as photographs of the couple's seven-year courtship, their joint tax return, her consistent preference for older men and the five months she spent nursing Rekshan back to health after his heart surgery; (2) the immigration judge made a mountain out of a molehill when he discounted her credibility based on her misstatement that Rekshan was twenty-one (rather than twenty-eight) years older than she was; and (3) the Board erred in concluding that the immigration judge's misstatement that she filed for divorce in March 2000 (as opposed to March 2001) was “of limited consequence [because] his decision was not based solely on the timing of the divorce.” A.R. 4. All of these arguments challenge the Board's assessment of the weight and credibility of the evidence, matters that the statute commits to the Attorney General's “sole discretion.” 8 U.S.C. § 1186a(c)(4). We thus lack jurisdiction to review them. 8 U.S.C. § 1252(a)(2)(B)(ii); see Osei, 462 Fed.Appx. at 560–61, 2012 WL 516162, at *1;Iliev, 613 F.3d at 1027.

Garcia–Morales v. Holder, 379 Fed.Appx. 431 (6th Cir.2010), is not to the contrary. Reviewing the Board's refusal to grant cancellation of removal—a discretionary remedy—on the ground that the alien had not shown his daughter would suffer extreme hardship, we noted that “[w]e arguably have jurisdiction to review [a] claim that the ... Board committed legal error by failing to consider all of the ... factors” set out in a precedential Board opinion. Id. at 434. Whether the Board considered legally prescribed factors is a question of law, while the arguments Johns makes here target only the Board's assessment of the weight and credibility of the evidence.

Mendez v. Holder, 566 F.3d 316 (2d Cir.2009), adds nothing either. The Second Circuit vacated and remanded the Board's refusal to grant cancellation of removal because it “totally overlooked” and “seriously mischaracterized” several pieces of evidence critical to whether the alien's children would suffer extreme hardship if he were removed. Id. at 323. The court concluded that it had jurisdiction to review the alien's arguments because the Board committed “an error of law” by mistreating the factual record in this way. Id. But the cancellation-of-removal statute, 8 U.S.C. § 1229b(b), does not vest “[t]he determination of what evidence is credible and the weight to be given that evidence ... within the sole discretion of the Attorney General,” id.§ 1186a(c)(4), as the hardship-waiver statute does. Even if Mendez is correct that some factual errors can be so severe that they become errors of law in the context of cancellation of removal, a point we need not decide, the hardship-waiver provision says that all weight-of-the-evidence and credibility questions are committed to the discretion of the Attorney General. Id.

All of this leaves a lingering question: if we lack jurisdiction to second guess the Board's assessment of the weight and credibility of the evidence, do we also lack jurisdiction to review whether substantial evidence supports the Board's decision that Johns's marriage was not bona fide? Courts of appeals have long had general authority to review Board decisions for substantial evidence. See8 U.S.C. § 1252(b)(4)(B); Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.2006). In this instance, although the statute ties our hands with respect to some components of the substantial-evidence assessment, namely the credibility and weight of the evidence, nothing indicates that Congress meant to divest courts of appeals of their longstanding authority to conduct substantial-evidence review. See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175, 129 S.Ct. 1436, 173 L.Ed.2d 333 (2009) ( “[R]epeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.”). That explains why we have previously applied substantial-evidence review to the Board's decision that an alien did not qualify for a hardship waiver because her marriage was not bona fide. Huang v. Mukasey, 523...