Hal Mervin Rust v. U.S. Attorney General

USCA11 Case: 22-11239 Document: 17-1 Date Filed: 03/22/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11239
Non-Argument Calendar
____________________
HAL MERVIN RUST,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A058-869-804
____________________
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2 Opinion of the Court 22-11239
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Hal Rust petitions for review of the Board of Immigration
Appeals’ (BIA) affirmance of the immigration judge’s (IJ) denial of
his application for a good-faith-marriage waiver of the requirement
to file a joint petition to remove conditions on his lawful perma-
nent residence. Rust argues that the IJ and BIA weighed the evi-
dence incorrectly and failed to consider the evidence that he pro-
vided in support of his argument that the marriage was entered
into in good faith.
I
We have an obligation to inquire into our own jurisdiction
sua sponte and review jurisdictional questions de novo. Bing Quan
Lin v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018).
We lack jurisdiction to review “any judgment regarding”
certain forms of discretionary relief. See Immigration and Nation-
ality Act (INA) § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). We re-
tain jurisdiction to review constitutional or legal claims. INA
§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). The scope of that jurisdic-
tion extends only to colorable questions of law and constitutional
claims. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 & n.2 (11th
Cir. 2007) (per curiam); Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1275
(11th Cir. 2020) (en banc) (clarifying that a legal claim must also be
colorable), aff’d sub nom., Patel v. Garland, 142 S. Ct. 1614 (2022).
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22-11239 Opinion of the Court 3
We have held that petitioners may not mask “a garden-variety
abuse-of-discretion argument—which can be made by virtually
every alien subject to a final removal order”—as a constitutional or
legal claim in order to invoke our jurisdiction. Alvarez Acosta v.
U.S. Att’y Gen., 524 F.3d 1191, 1196–97 (11th Cir. 2008). We have
called claims that the IJ improperly weighed the evidence “garden-
variety abuse of discretion argument[s] that [are] insufficient to
state a legal or constitutional claim.” Fynn v. U.S. Att’y Gen., 752
F.3d 1250, 1252 (11th Cir. 2014) (per curiam) (quotation marks
omitted). But whether the agency failed to give reasoned consid-
eration to an issue is a question of law. Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799 (11th Cir. 2016). The agency does not need to
specifically address each claim made or each piece of evidence pre-
sented, but it must consider all the evidence submitted. Id. at 803.
A non-citizen who marries a United States citizen will obtain
conditional residency status. INA § 216(a)(1), 8 U.S.C.
§ 1186a(a)(1). The non-citizen can have the conditions removed
upon filing a joint petition with his citizen spouse 90 days before
their second anniversary. INA § 216(c)(1)(A), (d)(2)(A), 8 U.S.C.
§ 1186a(c)(1)(A), (d)(2)(A).
Section 1186a(c)(4) provides that the Secretary of Homeland
Security, “in the Secretary’s discretion, may remove the condi-
tional basis of the permanent resident status for an alien” who
demonstrates that “the qualifying marriage was entered into in
good faith by the alien spouse, but the qualifying marriage has been
terminated.” INA § 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B)
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4 Opinion of the Court 22-11239
(emphasis added). The statute further provides that “[t]he deter-
mination of what evidence is credible and the weight to be given
that evidence shall be within the sole discretion of the Secretary of
Homeland Security.” INA § 216(c)(4), 8 U.S.C. § 1186a(c)(4).
In Fynn v. U.S. Attorney General, we held that we lacked
jurisdiction to review evidence-weighing challenges to a denial of
a good-faith-marriage waiver to the joint-filing requirement under
the jurisdictional bar to discretionary determinations in INA
§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), based on the plain lan-
guage of INA § 216(c)(4), 8 U.S.C. § 1186a(c)(4). 752 F.3d at 1252–
53. We also determined that we lacked jurisdiction to consider that
petitioner’s argument that the IJ failed to consider certain probative
testimony because he was essentially challenging the agency’s
credibility determination and weighing of the evidence. Id. at 1253.
Rust frames his brief as a challenge to the agency’s decision
because it was not based on “substantial evidence.” But “[a] rea-
soned-consideration examination does not look to whether the
agency’s decision is supported by substantial evidence.” Jeune, 810
F.3d at 803. Instead, a reasoned-consideration inquiry is a question
of law that we retain jurisdiction to examine under § 1252. Id. at
799. So, to the extent that Rust challenges the agency’s discretion-
ary decision to deny his waiver on the ground that it was unsup-
ported by “substantial evidence,” this is the type of evidence-
weighing challenge that we lack jurisdiction to review under Fynn.
752 F.3d at 1252–53.
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22-11239 Opinion of the Court 5
To the extent that Rust now seeks to present a reasoned-ex-
amination challenge, he faces two barriers. First, we think it likely
that he has abandoned any argument to that effect. A party aban-
dons an argument when he only makes “passing references” to the
issue. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir.
2010). Rust’s brief cites Seck v. U.S. Attorney General, 663 F.3d
1356, 1368 (11th Cir. 2011), for the proposition that the “BIA is re-
quired to consider all the evidence submitted by the applicant.”
Brief of Pet. at 10. The citation is buried in a broader argument
that the IJ and BIA failed to properly consider Rust’s brother’s tes-
timony about Rust’s bona fide marriage.
Even if Rust preserved the argument, it fails on the merits.
The IJ summarized Rust’s brother’s testimony in a paragraph in its
opinion. The IJ was not required to expressly address the testi-
mony in its analysis. Jeune, 810 F.3d at 803 (“[W]hile the agency is
required to consider all evidence that a petitioner has submitted, it
need not address specifically each claim the petitioner made or
each piece of evidence the petitioner presented.” (quotation marks
omitted)).
II
We lack jurisdiction to review Rust’s substantial-evidence
arguments, which challenge the agency’s discretionary decision to
deny his waiver and raise no colorable legal or constitutional issues.
His brief forfeits any reasoned-examination challenge; and even if
he raised one it would fail. Rust only challenges the IJ’s weighing
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6 Opinion of the Court 22-11239
of the evidence and fails to show that the IJ ignored evidence in the
record.
PETITION DISMISSED.