Tounkara v. Atty Gen USA , 112 F. App'x 849 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-2-2004
Tounkara v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3449
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-3449
SORY TOUNKARA,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES
Respondent
Petition for Review of a Decision of the
Board of Immigration Appeals
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 20, 2004
Before: McKEE, Circuit Judges,
ROSENN and WEIS, Senior Circuit Judges.
(Filed: November 2, 2004)
OPINION
McKEE, Circuit Judge.
Sory Tounkara argues that the Board of Immigration Appeals (“BIA”) erred in
affirming a ruling of an Immigration Judge (“IJ”) denying his request for a waiver of the
joint filing requirement to remove conditions from his permanent residency. He claims
that the denial was not supported by substantial evidence. Specifically, Tounkara argues
that the IJ and BIA erroneously based their decision on evidence of his separation from
his wife three and a half years after their marriage rather than on their intent at the time of
their marriage. For the reasons that follow, we will dismiss the petition for review for
lack of jurisdiction.
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case in detail. It is sufficient to note that Mr. Tounkara, who was admitted to the United
States on November 29, 1989 and whose status was adjusted to that of a conditional
permanent resident on April 22, 1993 based on his marriage to Felicia Shanell Fields
approximately nine months earlier, had his Petition to Remove the Conditions on
Residence denied by the INS and his conditional residency was terminated. The INS
subsequently commenced removal proceedings against Mr. Tounkara by filing a Notice to
Appear (“NTA”) in immigration court. The NTA charged that Mr. Tounkara was
removable pursuant to 8 U.S.C. § 1227(a)(1)(D)(I), as an alien whose conditional
permanent resident status had been terminated pursuant to the specific provision of 8
U.S.C. § 1186a. That provision required Mr. Tounkara and his wife to appear for
interviews with the INS.
After hearing testimony during Mr. Tounkara’s removal hearing, the IJ concluded
that Mr. Tounkara was subject to removal as charged and that, in light of Mr. Tounkara’s
conduct before, during and after his marriage to Ms. Fields, Mr. Tounkara failed to meet
his burden of demonstrating that his marriage was bona fide and that he was eligible for a
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waiver pursuant to 8 U.S.C. § 1186a(c)(4)(B). Mr. Tounkara’s conduct, the IJ concluded,
suggested that the marriage was entered into “for the purpose of obtaining a benefit
under” the Immigration and Naturalization Act (“INA”), not in good faith. The BIA
affirmed the IJ’s ruling, and this appeal followed.
II.
There are two ways that the conditions imposed on a conditional permanent
resident’s status may be removed. The alien and his or her citizen spouse may file a joint
petition to remove the condition under § 216(c)(1) of the INA or the alien may file an
application for waiver of the requirement to file the joint petition under § 216(c)(14). 8
U.S.C. § 1186a(c)(1), (c)(4). In order to qualify for the waiver under 8 U.S.C. §
1186a(c)(4)(B), the alien must demonstrate that “the qualifying marriage was entered into
in good faith by the alien spouse, but the qualifying marriage has been terminated . . . and
the alien was not at fault in failing to meet the requirements of paragraph (1).” A central
question in establishing the requisite “good faith” is whether the couple intended to
establish a life together at the time they were married. Bark v. INS, 511 F.2d 1200 (9th
Cir. 1975). In making this determination, courts have considered evidence of the parties’
conduct before, during and after the marriage. See Lutwak v. United States, 344 U.S. 604(1953); Garcia-Jaramillo v. INS, 604 F.2d 1236 (9th Cir. 1979) (considering such
evidence under 8 U.S.C. § 1186a(b)(1)(A)(I), which authorizes the Attorney General to
terminate the permanent residency status of an alien when “the qualifying marriage . . .
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was entered into for the purpose of procuring an alien’s admission as an immigrant”).
III
While we ordinarily have jurisdiction to review a final removal order under 8
U.S.C. § 1252(a), Congress has provided that:
Notwithstanding any other provision of law, no court shall have
jurisdiction to review –
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i),
1229b, 1229c, or 1255 of this title, 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 section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B).
“Subchapter” in § 1252(a)(2)(B)(ii), refers to Subchapter II of Chapter 12 of Title
8, U.S. Code, which includes 8 U.S.C. § 1186a. Subsection (c)(4) of § 1186a establishes
a series of waivers, pursuant to which,
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 requirements of paragraph (1) . . .1
. . . In acting on 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.
1
Under paragraph 1, the alien spouse and petitioning spouse must submit a petition
requesting the removal of the conditional basis and must appear for a personal interview
with an immigration officer. 8 U.S.C. § 1186a(c)(1).
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8 U.S.C. § 1186a(c)(4). An alien may qualify for one of these waivers if he or she can
demonstrate that “the qualifying marriage was entered into in good faith by the alien
spouse, but the qualifying marriage has been terminated . . . and the alien was not at fault
in failing to meet the requirements of paragraph (1).” 8 U.S.C. § 1186a(c)(4)(B).
The Attorney General’s discretion in deciding whether or not to grant Mr.
Tounkara’s requested good faith waiver is clearly “specified” within the scope of 8
U.S.C. § 1186(c)(4). Thus, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we are divested of
jurisdiction over Mr. Tounkara’s claim absent more than appears on this record. Urena-
Tavarez v. Ashcroft, 367 F.3d 154, 159-60 (3d Cir. 2004) (holding that 8 U.S.C. §
1252(a)(2)(B)(ii) bars judicial review of discretionary denial of waivers under 8 U.S.C. §
1186a(c)(4).)
Similarly, we are without jurisdiction to reconsider the evidence before the IJ
since, pursuant to § 1186a(c)(4), “[t]he determination of what evidence is credible and the
weight to be given that [is] within the sole discretion of the Attorney General.”
Therefore, for the above reasons, we will dismiss the petition for review for lack of
jurisdiction.
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