Iliev v. Holder, Jr. ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
July 19, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ILIA TODOROV ILIEV,
Petitioner,
v.
No. 09-9517
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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
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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.
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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).
1
Before us, Mr. Iliev does not contest the Board’s holding that he is
subject to removal or the denial of his request for a voluntary departure, but
instead trains his fire only on the BIA’s decision to deny him a hardship waiver.
For this reason, we focus our own analysis on the hardship waiver question alone.
-4-
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 (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
2
The Attorney General has delegated a considerable amount of his
authority over immigration matters to the BIA, see 8 C.F.R. §§ 1003.1(a) &
1003.10(a), and thus the Attorney General’s discretionary immigration actions are
often, as here, carried out by that agency.
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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
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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 F. App’x
752 (11th Cir. 2006) (unpublished).
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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
statute’s clarification that courts retain authority to review legal and
constitutional questions. And telling us what the law looked like before
§ 1252(a)(2)(D) tells us but little about how the law looks after § 1252(a)(2)(D).
It’s sort of like offering an essay on the rules of baseball before the introduction
of the Knickerbocker Rules: interesting as an historical matter, maybe, but not at
all descriptive of the world we inhabit today. Not only does the government seek
to rely on these outdated decisions; it also fails to address (or cite) more recent
decisions from those same circuits that postdate § 1252(a)(2)(D) and acknowledge
the authority of courts to review questions of law and constitutional claims. See
Alvarado de Rodriguez, 585 F.3d at 234; Roldan, 2010 WL 1980222 at *1.
Indeed, we have not been directed to a single case decided after § 1252(a)(2)(D)’s
enactment remotely suggesting, as the government would have it, that legal
questions and constitutional claims fall outside our purview.
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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 § 1186a(c)(4) evinces no intent to strip courts
of jurisdiction over credibility disputes. The problem is the plain language of
§§ 1252(a)(2)(B)(ii) and 1186a(c)(4) operates to do just that. The first provision
tells us courts have no authority to review “discretion[ary]” decisions assigned to
the Attorney General, and the second tells us credibility determinations fall within
the “sole discretion” of the Attorney General. It follows ineluctably from these
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express directions that credibility determinations are not reviewable. And no
amount of unenacted legislative history can override the plain language of statutes
that have endured the rigors of bicameralism and presentment. “[W]e do not
resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v.
United States, 510 U.S. 135, 147-48 (1994); see also Contreras-Salinas, 585 F.3d
at 714 n.4.
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 § 1252(a)(2)(B)(ii)’s
jurisdiction-stripping provision. See id. The fact that Congress could’ve — but
didn’t — provide a parallel exemption for credibility determinations is telling of a
choice thoughtfully made, not one blithely ignored. “In legislation generally, and
in this area particularly, Congress knows how to address an issue of jurisdiction
which it desires to be accorded special treatment.” Id.; see also Russello v.
United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another section of the same
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Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (internal alteration and quotation marks
omitted)). And we are hardly free to revisit and revise the choices Congress has
made.
B
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 § 1186a(c)(4)(B), the burden was on him as the petitioner to show, among
other things, that he entered into the marriage in good faith, and to make this
showing by clear and convincing evidence. See Opening Br. at 33; see also 8
U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 1216.5(e). According to Mr. Iliev, the Board
erred as a matter of law by adding to this burden and forcing him to overcome a
presumption that his marriage was fraudulent from the start. That the Board did
so can be discerned, Mr. Iliev says, from the administrative case law the BIA
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cited and relied on; as he puts it, “[t]he only indications on record of the standard
applied by the Board are its own citations to case law that imposes a rebuttable
presumption of fraud on petitioner.” Reply Br. at 16.
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
§ 1252(a)(2)(D), Congress granted us authority to review such questions, as
we’ve already explained and as all of our sister circuits now agree. But, while we
may hear Mr. Iliev’s claim, and while we review claims of legal error like his de
novo, there is simply no error of law lurking here for us to remedy. See Russo v.
Ballard Med. Prods., 550 F.3d 1004, 1010 n.2 (10th Cir. 2008) (questions of law
generally are reviewed de novo). The Board explicitly found that “there is a
paucity of evidence that would establish that the respondent entered into the
marriage in good faith.” BIA Order at 1-2. From this, the Board concluded that
“this record contains too many questions regarding the respondent’s intent to
conclude that he met his burden to show that he entered the marriage in good
faith. Consequently, we agree that the respondent has failed to establish his
eligibility for a good faith waiver.” Id. at 2. All of this amounts to a correct
statement of the law under § 1186a(c)(4)(B) — and is just as Mr. Iliev would
have it. At no point did the Board mention, let alone apply, any presumption of
fraud against him.
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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
3
Although Matter of Patel did apply a presumption of fraud in its analysis
under 8 U.S.C. § 1154(a)(2)(A), it did not suggest that the same presumption
applies in cases arising under § 1186a(c)(4)(B). In fact, just the opposite — it
expressly distinguished § 1186a(c)(4)(B) hardship waiver cases like Mr. Iliev’s
from § 1154(a)(2)(A) cases in which the presumption of fraud applies. See 19 I.
& N. Dec. at 783-84.
4
On the penultimate page of his opening brief, Mr. Iliev suggests in
(continued...)
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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
4
(...continued)
passing that the BIA’s decision might raise “serious constitutional concerns.”
Opening Br. at 41. He fails to develop this suggestion sufficiently, however, and
so has waived it. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”).
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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 § 1186a(c)(4)(B). We thus have no occasion today to
pass on the question whether we possess jurisdiction to review a petition raising
such a challenge.
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
acknowledging that Mr. Iliev had offered “possible explanations” for each of the
various facts on which it rested its decision. BIA Order at 2. The Board rejected
those explanations, however, because “the Immigration Judge made reasonable
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inferences from the record as a whole rejecting the respondent’s claims.” BIA
Order at 2. And the IJ’s “inference” about Mr. Iliev’s evidence is manifest in the
record before us. The IJ stated that he “heard testimony from the [petitioner] and
his former wife, and also has heard from friends, [and] has seen all the
affidavits,” IJ Order at 2, but that, at the end of it all, and for reasons he set forth
in a twelve page opinion, he couldn’t “believe a thing [Mr. Iliev] told [him].” IJ
Order at 11. 5 On this record, then, it is evident that the BIA and IJ did consider
Mr. Iliev’s testimony and simply rejected it as not credible. Accordingly, we have
no need to pass on the question whether the BIA’s failure to consider at all a
petitioner’s proof is something we might have jurisdiction to review.
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
5
Where, as here, a single member of the BIA affirms an IJ’s decision in a
brief opinion adopting the IJ’s reasoning, “we are not precluded from consulting
the IJ’s more complete explanation” of the grounds on which the BIA relied.
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). Of course,
Uanreroro and its progeny make clear that our “task is to determine whether, in
issuing [its] . . . order . . . , the BIA incorporated the IJ’s reasoning, either
expressly or by implication. Only then may we impute the IJ’s opinion to the
BIA.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007) (emphasis added).
See also Uanreroro, 443 F.3d at 1204 (“we will not affirm on grounds raised in
the IJ decision unless they are relied upon by the BIA in its affirmance”). In this
case, the BIA’s order makes manifest that it was adopting the IJ’s “reasonable
inferences” about Mr. Iliev’s credibility.
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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, §§ 1252(a)(2)(B)(ii) and 1186a(c)(4)
operate to deprive this court of jurisdiction to review either the BIA’s credibility
determinations or its weighing of the evidence it has found to be credible.
Congress has clearly said that those decisions belong to the Executive, not the
Judicial, Department. And careful attendance to the bounds of our jurisdiction “is
not a mere nicety of legal metaphysics,” but essential to the rule of law in “a free
society.” U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487
U.S. 72, 77 (1988). After all, “[t]he courts, no less than the political branches of
the government, must respect the limits of their authority.” Id.; see also In re C
& M Properties, L.L.C., 563 F.3d 1156, 1161 (10th Cir. 2009). Deference to the
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will of Congress, then, precludes us from entertaining this portion of Mr. Iliev’s
petition for review.
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
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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.
***
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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.
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