Michelle Powell v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Michelle Powell. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DISMISSED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15406

Date Filed: 07/24/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15406
Non-Argument Calendar
________________________
Agency No. A087-249-264
MICHELLE POWELL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 24, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Michelle Powell, who had been conditionally granted lawful permanent
resident status through her former marriage, appeals the denial of her application
for a waiver of the requirements for removing the conditional basis of her lawful

Case: 16-15406

permanent residence status.

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The Immigration Judge (“IJ”) and Board of

Immigration Appeals (“BIA”) had denied her application based on a finding that
Powell failed to meet her burden of establishing that she entered into the marriage
in good faith. After careful review, we dismiss the petition.
We review de novo our own subject matter jurisdiction. Fynn v. U.S. Att’y
Gen., 752 F.3d 1250, 1252 (11th Cir. 2014). We review only the decision of the
BIA, except to the extent the BIA expressly adopted or explicitly agrees with the
opinion of the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010).
Under the discretionary-decision bar of the Immigration and Nationality Act
(“INA”), we lack jurisdiction to review a “decision or action of the Attorney
General or the Secretary of Homeland Security the authority for which is specified
under [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General or
the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii); see also Zafar
v. U.S. Att’y Gen., 461 F.3d 1357, 1361 (11th Cir. 2006).

Despite this

jurisdictional bar, we retain jurisdiction over legal and constitutional claims raised
in a petition for review. 8 U.S.C. § 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen.,
610 F.3d 1311, 1314 n.4 (11th Cir. 2010). An argument that the IJ or BIA abused
its discretion by failing to properly weigh evidence or the facts as presented is a
“garden-variety abuse of discretion argument” that is insufficient to state a legal or
constitutional claim. Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196-97
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(11th Cir. 2008). In contrast, the “application of an undisputed fact pattern to a
legal standard” is a legal question subject to our review. Bedoya-Melendez v. U.S.
Att’y Gen., 680 F.3d 1321, 1324 (11th Cir. 2012) (quotation omitted).
According to the INA, an alien who obtains conditional lawful permanent
resident status based on a qualifying marriage must timely file a joint petition with
her spouse to remove the conditional basis of her status, and if she does not do so,
her status will be terminated. 8 U.S.C. § 1186a(c)(1)-(3). The joint petition must
show that the marriage was lawful, has not been annulled or terminated, and was
not entered into for immigration purposes. 8 U.S.C. § 1186a(d)(1)(A). If an alien
does not file a joint petition or make the required showing, the Secretary of
Homeland Security may, in his discretion, grant a waiver, and nevertheless remove
the conditional basis of the alien’s resident status, if the alien demonstrates that
“the qualifying marriage was entered into in good faith by the alien [ ], but the
qualifying marriage has been terminated” and the failure to meet the requirements
was not the alien’s fault. 8 U.S.C. § 1186a(c)(4)(B). The statute further provides
that “[t]he determination 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.” 8 U.S.C. § 1186a(c)(4).
In Fynn, we held that we lacked jurisdiction to review an alien’s challenges
to the weight accorded to evidence or credibility determinations made in deciding
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whether an alien entered into her marriage in good faith. 752 F.3d at 1253. We
noted that Fynn’s reply brief sought to frame his challenge as a legal claim that the
IJ failed to consider certain probative testimony, but that his initial brief made clear
that he was challenging the agency’s adverse credibility determination and the
weight assigned to the evidence.

Id.

Specifically, Fynn sought to explain

inconsistencies in certain testimony and challenge the weight given to certain
inconsistencies. Id. We held that challenges to the good faith determination that
focused on the weight of the evidence were barred. Id. at 1252-53.
Here, we lack jurisdiction under the INA and Fynn to review Powell’s
petition. See Fynn, 752 F.3d at 1252. To the extent Powell argues that substantial
evidence does not support the finding that her marriage was not entered into in
good faith, she is challenging the weight accorded to the evidence, which we
cannot review. See id. Moreover, while Powell argues that the BIA legally erred
by applying the wrong standard of proof, she acknowledges that the BIA cited the
correct standard; as a result, Powell essentially is arguing that the BIA erred by
finding that her evidence was insufficiently compelling, in light of the evidence as
a whole, to meet the standard. Thus, she is raising a garden-variety abuse-ofdiscretion argument, not a legal issue. See Alvarez Acosta, 524 F.3d at 1196-97.
Finally, Powell’s reliance on Lara v. Lynch, 789 F.3d 800 (7th Cir. 2015), is
misplaced. Not only is Lara, a Seventh Circuit case, not binding on this Court, but
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it is inapposite anyway. Lara concerned an argument that the BIA erred as a
matter of law by accepting as credible the petitioner’s unrebutted testimony, but
nevertheless failing to draw the necessary and inescapable conclusion that the
preponderance standard was met. See Lara, 789 F.3d at 804-05. The argument in
Lara, therefore, was about the “application of an undisputed fact pattern to a legal
standard,” which is a question of law. See id.; Bedoya-Melendez, 680 F.3d at
1324. Here, by contrast, the evidence is not undisputed, and Powell is not raising a
legal issue, but instead challenging the weighing of the evidence. Accordingly, we
lack jurisdiction to review her claims, and dismiss the petition for review.
PETITION DISMISSED.

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