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


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  •                               UNPUBLISHED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    Petition dismissed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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).
    2
    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).
    3
    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
    

Document Info

Docket Number: 14-1636

Citation Numbers: 599 F. App'x 72

Judges: King, Diaz, Davis

Filed Date: 4/2/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024