Juan Acevedo Calle v. Eric Holder, Jr. , 599 F. App'x 72 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1636
JUAN GUILLERMO ACEVEDO CALLE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 29, 2015 Decided: April 2, 2015
Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition dismissed by unpublished per curiam opinion.
Astrid Lockwood, LOCKWOOD IMMIGRATION, Fond du Lac, Wisconsin,
for Petitioner. Joyce R. Branda, Acting Assistant Attorney
General, Terri J. Scadron, Assistant Director, Kathryn L.
DeAngelis, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Guillermo Acevedo Calle, a native and citizen of
Colombia, petitions for review of the order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s (“IJ”) order denying his application for a
waiver under 8 U.S.C. § 1186a(c)(4) (2012). Because we are
without jurisdiction, we dismiss.
Under 8 U.S.C. § 1186a(a), (c), and (d)(2) (2012), an
alien married to a United States citizen may be granted a two-
year period of conditional lawful permanent resident status.
During the ninety-day period before the two-year anniversary of
the alien having been granted the conditional lawful permanent
resident status, the married couple must file a Form I-751
petition requesting removal of the conditional basis of the
alien’s lawful permanent resident status. 8 U.S.C.
§ 1186a(c)(1), (d)(2); 8 C.F.R. § 1216.2(b) (2014). If the
marriage was entered into in good faith but the spouse refuses
to participate in the petition seeking removal of the
conditional status because, for instance, the marriage ended in
divorce, the alien may file the petition alone and seek a
hardship waiver of the joint filing requirement under 8 U.S.C.
§ 1186a(c)(4). See also 8 C.F.R. §§ 1216.4(a)(1), 1216.5
(2014).
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Under § 1186a(c)(4), the Secretary of the Department
of Homeland Security (“Secretary”) has the discretion to waive
the joint-filing requirement if the alien demonstrates:
(1) extreme hardship upon removal; (2) the qualifying marriage
was entered into in good faith but was terminated and the alien
is not at fault in failing to jointly file; or (3) the marriage
was entered into in good faith and during the marriage the
spouse or child was battered or treated with extreme cruelty by
the spouse and the alien was not at fault in failing to meet the
requirements of the statute. If the alien’s petition is denied,
the conditional lawful permanent resident status is terminated
and the alien is removable pursuant to 8 U.S.C.
§ 1227(a)(1)(D)(i) (2012).
While there is no direct appeal from the Secretary’s
decision, the alien may seek review in removal proceedings. 8
C.F.R. § 216.5(f) (2014). If the alien does seek review, the
burden is on the alien to establish his eligibility for a waiver
of the joint-filing requirement. 8 U.S.C. § 1186a(c)(4). The
Secretary retains discretion to grant or deny a waiver
application, and “[t]he determination of what evidence is
credible and the weight to be given that evidence is within the
sole discretion of the Secretary of Homeland Security.” 8
U.S.C. § 1186a(c)(4)(D) (emphasis added).
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Under 8 U.S.C. § 1252(a)(2)(B)(ii) (2012), we lack
jurisdiction to review “any other decision or action of the
Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of
Homeland Security.” Id. Judicial review is limited to
constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D).
The Board found that there was no clear error in the
IJ’s adverse credibility determination or its finding that Calle
did not offer sufficient documentation supporting his claim that
his marriage was bona fide. Calle now challenges both of these
findings. But because Calle is challenging findings that are
committed to the sole discretion of the Secretary and he does
not raise a constitutional claim or a question of law, we are
without jurisdiction. See Boadi v. Holder, 706 F.3d 854, 860
(7th Cir. 2013); Iliev v. Holder, 613 F.3d 1019, 1027-28 (10th
Cir. 2010); Contreras–Salinas v. Holder, 585 F.3d 710, 713–15
(2d Cir. 2009); Suvorov v. Gonzales, 441 F.3d 618, 622 (8th Cir.
2006).
Accordingly, we dismiss the petition for review. We
dispense with oral argument because the facts and legal
4
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DISMISSED