Moody v. Holder , 523 F. App'x 88 ( 2013 )

12-485-ag
Moody v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 24th day of April, two thousand thirteen.
PRESENT: AMALYA L. KEARSE,
JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges.
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WINSOME ELAINE MOODY, AKA WINSOME ELAINE
MONTAGUE,
Petitioner,
-v.- 12-485-ag
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
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FOR PETITIONER: GLENN T. TERK, Wethersfield,
Connecticut.
FOR RESPONDENT: ERNESTO H. MOLINA, JR., Senior
Litigation Counsel (Jessica E.
Sherman, Trial Attorney, Stuart F.
Delery, Acting Assistant Attorney
General, Keith I. McManus, Senior
Litigation Counsel, on the brief),
United States Department of
Justice, Washington, District of
Columbia.
UPON DUE CONSIDERATION of this petition for review of
a Board of Immigration Appeals ("BIA") decision, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Winsome Elaine Moody, a native and citizen
of Jamaica, seeks review of a January 20, 2012 decision of the
BIA, affirming the December 1, 2009 decision of Immigration
Judge ("IJ") Michael W. Straus denying her application for a
waiver of the requirement to file a joint petition to remove the
conditions on her lawful permanent resident status. See In re
Moody, No. A028 326 025 (B.I.A. Jan. 20, 2012), aff'g No. A028
326 025 (Immig. Ct. Hartford Dec. 1, 2009). We assume the
parties' familiarity with the underlying facts and procedural
history of the case.
Under the Immigration and Nationality Act (the "INA"),
an alien who marries a United States citizen may petition for
lawful permanent resident status, which is granted on a
conditional basis if obtained in the first two years after the
marriage. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A),
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1186a(a)(1), (g)(1) (2006).1 This conditional permanent resident
status will be terminated where, inter alia, the couple fails to
file, before the second anniversary of the alien's receipt of
conditional permanent resident status, a joint petition to the
Secretary of Homeland Security seeking to remove the conditions.
See id. § 1186a(c)(1)(A), (c)(2)(A)(i).
Nevertheless, the Attorney General, in his discretion,
may excuse a conditional permanent resident's failure to file a
joint petition to remove the conditions if she demonstrates
that, inter alia, "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 [file a timely joint
petition]." Id. § 1186a(c)(4)(B).
In this case, petitioner had her status adjusted by
the Immigration and Naturalization Service ("INS") to that of a
conditional permanent resident in 1987, based on her marriage to
William Moody ("Moody"), a United States citizen. Her
conditional permanent resident status was terminated in 1989 by
the INS after she and Moody failed to jointly petition for
removal of the conditions. In 2008, the U.S. Citizenship and
1
Although the INA was amended in 2011, see Pub. L. No.
112-58, § 1, 125 Stat. 747 (2011), we refer to the version of
the INA in effect at the time petitioner applied for the waiver.
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Immigration Services denied petitioner's application, made in
2002, for a waiver of that requirement, pursuant to 8 U.S.C.
§ 1186a(c)(4)(B), finding that she failed to establish that her
marriage to Moody was "entered into in good faith." In
petitioner's removal proceedings, the BIA affirmed the IJ's
denial of her renewed application for such a waiver.
Where, as here, the BIA adopts the IJ's reasoning and
supplements the IJ's decision, we review the IJ's decision as
supplemented by the BIA. See Boluk v. Holder, 642 F.3d 297, 301
(2d Cir. 2011). Under 8 U.S.C. § 1252(a)(2)(B)(ii), we
generally lack jurisdiction to review a discretionary decision
of the Attorney General.2 See Contreras-Salinas v. Holder, 585
F.3d 710, 713 (2d Cir. 2009) (per curiam). Although petitioner
has argued that this Court has jurisdiction because petitioner's
waiver application was filed in 2002, prior to the 2005
enactment of the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,
2
Although we have not decided whether we have
jurisdiction to review the agency's threshold determination that
a petitioner has not established eligibility for a waiver under
8 U.S.C. § 1186a(c)(4) -- an issue on which our sister circuit
courts are divided, see Contreras-Salinas v. Holder, 585 F.3d
710, 713 (2d Cir. 2009) (per curiam); Atsilov v. Gonzales, 468
F.3d 112, 116-17 (2d Cir. 2006) (per curiam) -- we need not
resolve the issue at this time because petitioner's claims
challenge only factual determinations and the weight given to
certain evidence by the agency.
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the statutory provision that bars judicial review of such
discretionary decisions by the Attorney General was introduced
in 1996, in the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009, see 8
U.S.C. § 1252(a)(2)(B)(ii) (2000). We retain jurisdiction to
review constitutional claims or questions of law raised in a
petition for review, and we review those claims de novo. See 8
U.S.C. § 1252(a)(2)(D); Boluk, 642 F.3d at 301; Atsilov v.
Gonzales, 468 F.3d 112, 113 (2d Cir. 2006) (per curiam). "The
amount of weight to be accorded any particular fact raises no
question of law and is accordingly not within this Court's
jurisdiction to review the agency's determination." Boluk, 642
F.3d at 304; see also 8 U.S.C. § 1186a(c)(4) ("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.").
Because petitioner challenges only the agency's
factual determinations and the weight given to certain evidence,
we lack jurisdiction to review her claims. Although petitioner
attempts to frame her challenge as a question of law by stating
that the agency "'totally overlooked' and/or 'seriously
mischaracterized'" certain items of evidence and statements of
purported witnesses, Pet. Br. 5, the decisions of the IJ and the
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BIA belie this argument. Cf. Mendez v. Holder, 566 F.3d 316,
323 (2d Cir. 2009) (per curiam) (finding error of law where the
agency "totally overlooked" and "seriously mischaracterized"
certain factors important to the determination of petitioner's
claim).
Both the IJ and the BIA acknowledged petitioner's
divorce decree, testimony from petitioner, and statements and
letters from her brother, friends, and physician, indicating
that she left her husband due to his abuse and that the reason
she lacked documentary evidence of her marriage was due to the
circumstances in which she left the marital home and the length
of time that had passed since the marriage ended. See In re
Moody, No. A028 326 025, at 3, 8 (Immig. Ct. Hartford Dec. 1,
2009); In re Moody, No. A028 326 025, at 1-2 (B.I.A. Jan. 20,
2012). After considering all of this evidence, however, the
agency rejected petitioner's claim, in part due to discrepancies
and internal inconsistencies that cast doubt on the credibility
of the evidence offered. See In re Moody, No. A028 326 025, at
8-9 (Immig. Ct. Hartford Dec. 1, 2009); In re Moody, No. A028
326 025, at 2 (B.I.A. Jan. 20, 2012). Rather than raising
constitutional claims or questions of law, petitioner's
arguments amount to "what is essentially a quarrel about fact-
finding or the exercise of discretion" by the agency. Barco-
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Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (citation
and internal quotation marks omitted). Accordingly, we lack
jurisdiction to review the agency's decision. See Contreras-
Salinas, 585 F.3d at 713-14.
We have considered all of petitioner's contentions in
support of this Court's jurisdiction and have found them to be
without merit. For the foregoing reasons, the petition for
review is DISMISSED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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