                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

Hamilton v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3296




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3296


                              SYLVESTER HAMILTON,
                                          Petitioner

                                           v.

                            JOHN ASHCROFT,
                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent


                        On Petition for Review of an Order of the
                         Immigration and Naturalization Service
                            Board of Immigration Appeals
                                 (BIA No. A43 094 961)


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2004

                Before: RENDELL, COWEN and LAY*, Circuit Judges

                                 (Filed: April 14, 2004)


                              OPINION OF THE COURT




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
LAY, Circuit Judge.

       Sylvester Hamilton seeks review of a decision of the Board of Immigration

Appeals (the “Board”) vacating the order of an immigration judge (“IJ”) that removed the

conditional basis of Hamilton’s lawful permanent resident status. Because we hold that

we lack jurisdiction to review the Board’s decision, we will deny the petition for review.




                                     BACKGROUND

       Hamilton, a native and citizen of Jamaica, married a United States citizen on

August 16, 1990, and entered the United States on December 23, 1991, as a lawful

permanent resident on a conditional basis. See 8 U.S.C. § 1186a(a)(1). In order for the

conditional basis of Hamilton’s lawful permanent resident status to be removed, Hamilton

and his wife had to file a joint petition for removal of the condition and appear together

for a personal interview. Id. § 1186a(c)(1). Because a joint petition was never filed,

Hamilton petitioned for discretionary removal of the condition under 8 U.S.C.

§ 1186a(c)(4), which authorizes the Attorney General to waive the joint filing

requirement if one of three “hardship” categories is met. One of the categories allows a

waiver of the joint filing requirement if the marriage was entered into in good faith but

later terminated, other than through death of the spouse, and the alien was not at fault in

failing to file the joint petition. Id. § 1186a(c)(4)(B). Another category allows a wavier if

the marriage was entered into in good faith but during the marriage the alien spouse was



                                              2
subjected to extreme cruelty by the citizen spouse and was not at fault in failing to file the

joint petition. Id. § 1186a(c)(4)(C).

       On June 4, 1998, the Immigration and Naturalization Service (“INS”) denied

Hamilton’s petition, finding that he did not qualify for a waiver of the joint filing

requirement. As a result, Hamilton’s conditional permanent resident status was

terminated. On June 25, 1998, the INS served Hamilton with a notice to appear, charging

him with being removable because his conditional permanent resident status had been

terminated. Following a hearing in immigration court, the IJ found that Hamilton was

eligible for a waiver of the joint filing requirement under § 1186a(c)(4)(B) and granted

his petition to remove the conditional basis of his lawful permanent resident status.

       The INS appealed to the Board. On July 7, 2003, the Board sustained the appeal

and vacated the IJ’s opinion, concluding Hamilton failed to meet his burden of

establishing that he entered into the marriage in good faith. The Board ordered that

Hamilton either voluntarily depart from the United States or be removed to Jamaica.

Hamilton petitioned for review of the Board’s decision.




                                        DISCUSSION

       We must consider our jurisdiction over Hamilton’s petition. The Board’s removal

order was not referred to the Attorney General for review and is therefore

administratively final. Thus, our jurisdiction over Hamilton’s petition for review would



                                              3
arise under 8 U.S.C. § 1252(a)(1), which provides for judicial review of final orders of

removal. However, § 1252(a)(2)(B)(ii) divests courts of jurisdiction to review any

“decision or action of the Attorney General the authority for which is specified under this

subchapter to be in the discretion of the Attorney General, other than the granting of relief

under section 1158(a) of this title.” Id.1

       Section 1186a(c)(4) leaves it to the Attorney General’s discretion whether to

remove the conditional basis of an alien’s lawful permanent resident status absent the

filing of a joint petition. Id. § 1186a(c)(4). Stated another way, the Attorney General has

discretion to grant a “hardship waiver” of the joint filing requirement provided the alien

can demonstrate, inter alia, that “the qualifying marriage was entered into in good faith.”

Id. In this regard, “[t]he determination of what evidence is credible and the weight to be

given that evidence shall be within the sole discretion of the Attorney General.” Id. In

this case, the Board concluded that Hamilton was not entitled to a hardship waiver

because he had not met his burden of demonstrating a good-faith marriage. We conclude

that this determination is a discretionary decision that we may not review.

       Our conclusion is supported by Mendez-Moranchel v. Ashcroft, 338 F.3d 176 (3d

Cir. 2003). In Mendez, we considered whether we had jurisdiction to review the Board’s

decision denying M endez’s request for cancellation of removal under 8 U.S.C. § 1229b.


  1
   The phrase “under this subchapter” refers to subchapter II of Chapter 12 of Title 8,
which includes sections 1151 through 1378. See CDI Info. Servs., Inc. v. Reno, 278 F.3d
616, 619 (6th Cir. 2002). Thus, the section at issue in this case, § 1186a, falls within this
subchapter.

                                              4
Id. at 176. Pursuant to § 1229b, the Attorney General may cancel the removal of an alien

if four requirements are met, including the requirement that removal would result in

extreme hardship. 8 U.S.C. § 1229b(b)(1). In Mendez, the Board determined that

Mendez failed to meet the hardship requirement and denied his request for discretionary

cancellation of removal. Mendez, 338 F.3d at 177. We held that we were without

jurisdiction to review the Board’s decision because whether an alien had met the hardship

requirement was a discretionary decision. Id. at 179.

       As in Mendez, the Board determined that Hamilton had not met the requirement of

demonstrating that his marriage was entered into in good faith, effectively denying

Hamilton’s request for a hardship waiver under § 1186a(c)(4). We conclude that the

determination of whether Hamilton demonstrated the requirements for a hardship waiver

“is a quintessential discretionary judgment.” Mendez, 338 F.3d at 179. Furthermore, the

authority to grant a hardship waiver is clearly within the discretion of the Attorney

General and thus falls squarely within the plain language of § 1252(a)(2)(B)(ii).

       Therefore, we lack jurisdiction to review the Board’s decision, and the petition for

review will be denied.




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