Marji v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0100n.06
Filed: February 8, 2006
No. 04-4536
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JIHAD MARJI, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) OF A DECISION OF THE
) BOARD OF IMMIGRATION
ALBERTO R. GONZALES, U.S. Attorney General, ) APPEALS
)
Respondent. )
BEFORE: GUY, SUTTON, and McKEAGUE, Circuit Judges.
PER CURIAM. Petitioner Jihad Marji seeks review of the denial of his petition for
suspension of deportation and voluntary departure. We find no error on petitioner’s legal claims
and do not have jurisdiction to review his remaining claims. Accordingly, we affirm.
I.
Marji is a Jordanian native and citizen who entered the United States in 1988 at age 25. He
entered using a non-immigrant visa, which permitted him to remain in the country until August 1,
1989. He overstayed his visa without authorization. Officials of the former Immigration and
Naturalization Service commenced proceedings against him in January 1996. Marji admitted his
deportability, and applied for a suspension of deportation under § 244(a) of the Immigration and
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Nationality Act (“INA”), 8 U.S.C. § 1254 (repealed 1996).1 Generally, an immigration judge can
suspend deportation if the alien meets the following prerequisites: (a) the alien was physically
present in the United States for at least seven years preceding the petition; (b) the alien was a person
of good moral character during that period; and (c) deportation would result in extreme hardship to
the alien or the alien’s spouse, parent, or child who is a citizen of the United States or a lawful
permanent resident alien. Id. § 1254(a)(1). Marji also sought permission for voluntary departure if
his petition for suspension of removal was denied. Id. § 1254(e).
In August 2003, Immigration Judge Robert D. Newberry (the “IJ”) held a hearing on Marji’s
petition. The Government conceded that Marji met the seven-year residency requirement, so the IJ
focused on the factors of good moral character and extreme hardship.
The IJ concluded that Marji did not have good moral character. Although Marji worked
continuously, there were periods in which he did not have a valid work permit and did not file an
income tax report or pay income taxes. The IJ found that Marji supported his wife’s heroin habit
and thwarted her participation in a drug-rehabilitation program. Marji had also been convicted of
domestic violence.
On the extreme hardship element, the IJ found that Marji made no showing that his
deportation would create an extreme hardship on himself, his wife, or his parents. If Marji was
1
Marji’s deportation proceedings commenced before April 1, 1997, but the final order of
deportation was issued after October 30, 1996. Under the “transitional rules” of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Marji’s petition was
treated as one for “suspension of deportation” under § 244(a) of the pre-1996 version of the INA,
rather than cancellation of removal under IIRIRA. See IIRIRA § 309(a), (c)(1), (c)(4); 8 U.S.C.S.
§ 1101.
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removed, his wife would have to support her own drug habit, but this would not constitute a relevant
“hardship.” The spouses offered conflicting testimony on several matters, including health and
medical problems, the topic of children, and their separation. Given this and other evidence, the IJ
questioned the validity of the marriage. While making no formal finding on its validity, the IJ found
that Marji failed to show any extreme hardship to his wife if he were deported. The IJ also found
that Marji failed to support his assertion that his parents depended on him for financial support.
Even had Marji met the prerequisites for suspension, the IJ determined that he would not
grant such relief as a matter of discretion. Accordingly, he denied Marji’s petition for suspension
of deportation. The IJ also denied Marji’s request for voluntary departure for similar reasons.
In affirming the IJ’s decision, the Board of Immigration Appeals (“BIA”) used its
streamlined “affirmance without opinion” procedure. 8 C.F.R. § 1003.1(e)(4). Where the BIA
affirms an IJ’s decision without opinion, the IJ’s decision is deemed the final agency action. Id. §
1003.1(e)(4)(ii); see also Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005).
II.
Marji must establish his good moral character and extreme hardship of deportation to be
eligible for suspension of deportation. Yet, even if eligible, there is no guarantee his deportation
will be suspended – the final decision is left to the discretion of the IJ. 8 U.S.C. § 1254(a) (repealed
1996) (“[T]he Attorney General may, in his discretion, suspend deportation [if the alien satisfies the
prerequisites.]”).
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Our standard and scope of review of the IJ’s decision are governed by the REAL ID Act of
2005 (the “Act”), Pub. L. 109-13, Div. B, 119 Stat. 231 (May 11, 2005). Under the Act, we do not
have jurisdiction to review “any judgment regarding the granting of relief” on suspension of
deportation petitions or “any other decision or action” left to the discretion of the Attorney General
or the Secretary of Homeland Security. See 8 U.S.C. § 1252(a)(2)(B)(i),(ii) (2005). As designees
of the Attorney General, this jurisdictional limitation on our review extends to the discretionary
decisions of immigration judges. 8 C.F.R. § 1003.10. An immigration judge’s “findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). Notwithstanding these limitations, we retain jurisdiction to review claims
of constitutional or legal error. Id. § 1252(a)(2)(D).
Marji raises three claims related to his petition for suspension of deportation. He first argues
that a translation error involving his religious affiliation caused the IJ to draw unwarranted
conclusions from differences between testimony and the written application. Marji concedes that
this is a claim of mistake of fact. Credibility and other factual determinations are left to the IJ. Id.
§ 1252(b)(4)(B); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n.4 (10th Cir. 2005) (“[W]e are
satisfied that the Real ID Act does not provide this court with jurisdiction to review the agency’s
determinations on . . . credibility issues.”). Marji has pointed to no mistake of fact that would
compel a reasonable adjudicator to find his testimony credible on this issue.
Marji also argues that the IJ erred as a matter of law by purportedly making a legal
conclusion on the validity of the Marjis’ marriage while a related petition was pending. The IJ did
not make any legal conclusion about the validity of the marriage. Given several inconsistencies in
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testimony, the IJ questioned the validity of the marriage, but did not conclude that it was invalid.
The IJ was well within his discretion to consider the record evidence of the Marjis’ marriage. See
Ali v. Ashcroft, 366 F.3d 407, 412 (6th Cir. 2004); Ayyoub v. INS, 93 F. App’x 828, 834-35 (6th Cir.
2004).
Marji’s third claim likewise fails. He argues that the IJ made a mistake of law by
purportedly holding that Marji’s unauthorized work and lack of tax payments precluded him from
meeting the character requirement. Contrary to Marji’s assertion, however, the IJ did not do this.
Instead, the IJ simply found these facts relevant, not determinative, on whether Marji had good
moral character. As working without authorization and failing to pay taxes can be grounds for an
adverse character finding, the IJ did not err in considering these facts. See, e.g., Santana-Albarran
v. Ashcroft, 393 F.3d 699, 702 (6th Cir. 2005).
III.
Marji offers no argument in support of his petition for voluntary departure other than to
assert that the “statutory requirements [for such relief] were clear and present.” Even had he made
a stronger argument, “[a] decision denying voluntary departure is . . . a discretionary decision.” Ali,
366 F.3d at 412. Accordingly, we do not have jurisdiction to review the IJ’s decision, other than for
underlying claims of legal or constitutional error. Abu-Khaliel v. Gonzales, – F.3d –, 2006 FED App.
0044P, at **3 (6th Cir.); Ali, 366 F.3d at 412. As Marji asserts no legal or constitutional claim of
error on this matter, his claim is beyond the court’s review jurisdiction.
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IV.
For the foregoing reasons, the IJ’s decision, as the final agency action in this case, is
affirmed.
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