                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 27 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

KWAN CHUL LEE,                                   No. 12-70860

              Petitioner,                        Agency No. A043-232-616

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 4, 2013
                            San Francisco, California

Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.



       Kwan Lee, a citizen of South Korea, appeals a final order of removal issued

by the Board of Immigration Appeals. We have jurisdiction to review final orders

of removal under 8 U.S.C. § 1252.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lee conceded removability under 8 U.S.C. § 1227(a)(1)(D) because he

failed to meet the joint filing requirement to remove the condition on his

permanent residence status. 8 U.S.C. § 1186a(c)(1). Lee applied for hardship

waivers under § 1186a(c)(4)(A), (B), and (C), which allow the Attorney General

discretion to waive the joint filing requirement. Lee also applied for a

misrepresentation waiver under 8 U.S.C. § 1227(a)(1)(H). The immigration judge

denied Lee’s request for relief. The Board of Immigration Appeals (“Board”)

affirmed on appeal.



      Lee argues that the immigration judge and the Board erred by not properly

determining eligibility before denying the waivers as a matter of discretion. This

court does not have jurisdiction to review the merits of discretionary judgments,

though we can review questions of law, including eligibility for such discretionary

waivers. 8 U.S.C. § 1252(a)(2)(D); Singh v. Holder, 591 F.3d 1190, 1197 (9th Cir.

2010) (holding that judicial review is available over the determination of whether

extreme hardship exists, though no jurisdiction exists to review the ultimate

decision of whether to grant a waiver under § 1186a(c)(4)(A)).




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      It is true that before an immigration official can grant a waiver, he must first

establish that the alien is eligible for relief. 8 U.S.C. § 1186a(c)(4) (the Attorney

General has discretion to remove condition on permanent resident status if alien

demonstrates eligibility). But the statute does not prohibit denying waivers as a

matter of discretion without first establishing eligibility. The immigration judge

assumed Lee was eligible for waiver, but decided Lee did not warrant a favorable

exercise of discretion. Thus we have no eligibility question before us, just a

discretionary denial assuming eligibility, and lack of jurisdiction to review it.



      Lee applied for a fourth discretionary waiver, under § 1227(a)(1)(H). The

immigration judge neglected to address this request for relief, but the Board did

consider the request and decided to deny the waiver as a matter of discretion.

Where the Board conducts a de novo review, as it did, “[a]ny error committed by

the [immigration judge] will be rendered harmless by the Board’s application of

the correct legal standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).

Here, the Board did not engage in impermissible fact-finding, but used the findings

of the immigration judge to make a discretionary judgment. 8 C.F.R.

§ 1003.1(d)(3)(ii) (“The Board may review questions of law, discretion, and

judgment and all other issues in appeals from decisions of immigration judges de


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novo.”). Any error by the immigration judge in failing to address the matter was

therefore cured when the Board considered Lee’s claim and denied it as a matter of

discretion.




      Lee also argues that the immigration judge lacked jurisdiction because the

initial Notice to Appear (“NTA”) was not properly served on Lee. The Board

correctly held that the immigration judge cured any defect in service when he gave

Lee a copy of the NTA and ten days to review it. Jurisdiction vests with the

immigration judge “when a charging document is filed with the immigration court”

along with a “certificate showing service on the opposing party pursuant to

§ 1003.32.” 8 C.F.R. § 1003.14(a). Section 1003.32 does not require the

certificate of service when “service is made on the record during [a] hearing.” 8

C.F.R. § 1003.32(a). The record appears to show actual knowledge by Lee of the

NTA, and the record shows that service was accomplished on the record in open

court, curing whatever defect may have existed.



      Lee also argues that the immigration judge and the Board erred by taking it

upon themselves to deny voluntary departure when he had not asked for it. The


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fact that the immigration judge considered a form of relief not formally sought

does not imply that the immigration regulations were violated. Although Lee cites

a provision of the INA which grants aliens the right to apply for such relief, he has

cited no regulation that prohibits an immigration official from considering this

form of relief unless a formal application is made by an alien.



      Finally, Lee contends that the immigration judge erroneously cited 8 U.S.C.

§ 1227(a)(1)(C) in his oral decision, did not sustain the charge under 8 U.S.C.

§ 1227(a)(2)(E)(i), and ordered removal without reference to a charge. We review

the Board decision, though, not the immigration judge’s decision. The Board

agrees that the immigration judge did not sustain the charge of removability under

“section 237(a)(2)(E)(i) of the Act.” Thus Lee has not been ordered removed

under the “Domestic violence, stalking, and child abuse” provision. The Board

upheld removability based on Lee’s concession through counsel that he was

removable under “section 237(a)(1)(D)(i) of the Act.” That subsection addresses

removability of aliens who had obtained conditional permanent resident status as

spouses, sons, and daughters of U.S. citizens. Thus it is clear from the Board’s

decision that Lee was ordered removed because his conditional permanent resident

status based on his mother and stepfather no longer applied, not because of


                                          5
domestic violence or stalking. We therefore need not remand for further

clarification of the reason for removal.




      Petition DENIED.




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