Callen Marube v. Loretta E. Lynch , 623 F. App'x 837 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3429
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Callen Marube,
lllllllllllllllllllllPetitioner,
v.
Loretta E. Lynch, United States Attorney General,1
lllllllllllllllllllllRespondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 21, 2015
Filed: December 14, 2015
[Unpublished]
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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
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PER CURIAM.
1
Loretta E. Lynch is automatically substituted for Eric H. Holder, Jr., pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
Callen Marube, a native and citizen of Kenya, petitions for review of a decision
of the Board of Immigration Appeals denying her request for special rule cancellation
of removal. We deny the petition.
Marube entered the United States on an F-1 student visa in 2005 to attend
Wichita State University, but she never enrolled in classes. She married Terrell
Miller, a United States citizen, in 2006 and filed Forms I-130 and I-485 as an alien
relative to adjust her status to lawful permanent resident. The Department of
Homeland Security denied the Form I-130 application on the ground that Marube’s
marriage to Miller was fraudulent, and Marube withdrew her Form I-485 application.
The Department then charged Marube as removable for failure to comply with
nonimmigrant status, for failure to fulfill a marital agreement that was made for the
purpose of procuring admission to the United States, and as an alien inadmissible at
the time of entry for seeking to procure admission into the United States by fraud.
At a hearing before an immigration judge, Marube admitted that she was
removable under 8 U.S.C. § 1227(a)(1)(C)(i) for failure to comply with nonimmigrant
status. Marube filed an application for cancellation of removal under a special rule
of 8 U.S.C. § 1229b(b)(2), based on allegations that she was battered or subjected to
extreme cruelty by Miller and that removal would result in extreme hardship to her or
her daughter, a United States citizen. In the alternative, she sought voluntary
departure under 8 U.S.C. § 1229c(b) in lieu of removal. The immigration judge held
a second hearing and received testimony from Marube, her second husband, and other
witnesses. The immigration judge also heard testimony from the immigration officer
who investigated Marube’s first marriage to Miller and determined the marriage to be
fraudulent.
The immigration judge denied Marube’s request for cancellation of removal.
The immigration judge found that Marube was removable on two grounds: for failure
to comply with nonimmigrant status, and under 8 U.S.C. § 1227(a)(1)(G)(ii) for
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committing marriage fraud in her marriage to Miller. The immigration judge found
Marube’s testimony to be “mostly consistent” but noted “several omissions and
inconsistencies” and declined to give full weight to her testimony regarding her
marriage to Miller. Due to the finding of marriage fraud, the immigration judge
concluded that Marube was statutorily ineligible for cancellation of removal under the
special rule for battered spouses and denied her application. 8 U.S.C.
§ 1229b(b)(2)(A)(iv). In lieu of removal, the immigration judge granted Marube’s
request for voluntary departure. Marube appealed the decision to the Board of
Immigration Appeals, arguing that the immigration judge’s credibility assessment and
findings of fact were clearly erroneous. The Board dismissed the appeal, and Marube
filed a timely petition for review.
We review the Board’s order as the final decision of the agency, but we lack
jurisdiction to review a discretionary decision to deny cancellation of removal. 8
U.S.C. § 1252(a)(2)(B)(i); Sanchez-Velasco v. Holder, 593 F.3d 733, 735 (8th Cir.
2010). We also lack jurisdiction to review any other decision “specified . . . to be in
the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). We retain
jurisdiction to consider “constitutional claims or questions of law” raised in a petition
for review from the Board. 8 U.S.C. § 1252(a)(2)(D); Sanchez-Velasco, 593 F.3d at
735.
Marube raises two arguments in her petition for review. First, she argues that
the immigration judge’s decision to grant voluntary departure is inconsistent with his
determination that she had committed marriage fraud because voluntary departure
requires a finding of good moral character. 8 U.S.C. § 1229c(b)(1)(B). Marube
appears to assert that the immigration judge’s finding of marriage fraud necessarily
implied a finding that Marube gave false testimony at her immigration hearing and
thus logically conflicted with a determination that she was a person of good moral
character for the purposes of voluntary departure. See 8 U.S.C. § 1101(f)(6).
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We will not consider this contention, because Marube failed to raise it before
the Board. See Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir. 2006). Marube did
not argue that the immigration judge’s determinations on marriage fraud and voluntary
departure were inconsistent; rather, she took issue with the immigration judge’s
credibility determination and findings regarding marriage fraud in her agency appeal.
The Board thus had no occasion to address the point. Marube has offered no good
reason why she should be exempted from the ordinary exhaustion requirement, and
we adhere to the general rule.
Second, Marube argues the immigration judge’s credibility findings were not
supported by substantial evidence. She asserts that the immigration judge focused on
minor inconsistencies in her testimony and ignored consistent statements in the record.
This challenge to the immigration judge’s credibility determination lies squarely
within the agency’s discretion, and we lack jurisdiction to review it. 8 U.S.C.
§ 1229b(b)(2)(D) (“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.”);
see also 8 U.S.C. § 1252(a)(2)(B)(ii); Hamilton v. Holder, 680 F.3d 1024, 1026-27
(8th Cir. 2012).
The petition for review is denied.
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