                                                             NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                       No. 10-1855
                                       ___________

                                  LUISA MALDONADO,
                                                Petitioner
                                          v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                           Respondent
                 ____________________________________

                          On Petition for Review of an Order of the
                                Board of Immigration Appeals
                                 (Agency No. A95 828 715)
                       Immigration Judge: Honorable Frederic G. Leeds
                         ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 23, 2011
              Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
                           (Opinion filed: April 7, 2011)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM.

              Luisa Maldonado, a native and citizen of the Dominican Republic, petitions

for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion

to reopen her immigration proceedings. For the reasons that follow, we will deny the

petition for review.

              Maldonado came to the United States in 1991 as a visitor. In 2002, she
married a United States citizen. The following year, Maldonado adjusted her status to

that of a conditional permanent resident based on her marriage. Maldonado and her

husband filed a joint petition to remove the conditions on her residence in 2005. The

Department of Homeland Security, however, denied the petition and terminated

Maldonado’s status, having concluded that she and her husband failed to establish that

the marriage was entered into in good faith and not to procure her entry to the United

States as an immigrant. In 2006, a notice to appear was issued charging that Maldonado

was subject to removal from the United States as a result of the termination of her

conditional permanent resident status.

              After a hearing, an Immigration Judge (“IJ”) concluded that the

Government met its burden of proof to establish that Maldonado’s marriage was not

entered into in good faith. The IJ ordered Maldonado’s removal to the Dominican

Republic. On appeal, the BIA decided that Maldonado’s conditional permanent resident

status was properly terminated and affirmed the order of removal. The BIA noted

numerous inconsistencies in the evidence, including discrepancies in the couple’s tax

filings and inconsistencies in their testimony.

              Maldonado then filed a motion to reopen her immigration proceedings,

asserting that her husband had taken deliberate steps to prevent her from showing that the

marriage was entered into in good faith. Maldonado sought reopening in order to apply

for adjustment of status under provisions of the Violence Against Women Act of 1994

(“VAWA”), which afford relief for aliens who are victims of domestic abuse at the hands
                                              2
of United States citizen spouses. In support of her motion, Maldonado submitted several

documents, including her affidavit, medical notes dated March 7, 2007, and invoices

reflecting payments to a psychological center.

              In denying the motion to reopen, the BIA decided that Maldonado failed to

establish prima facie eligibility for adjustment of status. The BIA explained that

Maldonado was required to show, among other things, that her marriage was entered into

in good faith, that she and her husband had shared a joint residence, and that her husband

had subjected her to battery or extreme cruelty. See 8 U.S.C. § 1154(a)(1)(A)(iii); 8

C.F.R. § 204.2(c). The BIA concluded that the evidence of record together with the

evidence submitted in support of the motion to reopen failed to make this showing.

              The BIA explained that it had previously affirmed the IJ’s decision that

Maldonado’s marriage was not entered into in good faith, that the evidence cast doubt on

whether she and her husband had shared a residence, and that Maldonado’s new evidence

did not offset the evidence of record. The BIA also found that Maldonado did not

provide any objective evidence supporting her allegations that her husband had subjected

her to battery or extreme cruelty and noted that the medical report she had submitted

appeared to be inconsistent with the allegations in her affidavit. This petition for review

followed.

              We must first address the Government’s argument that we lack jurisdiction

over the petition for review. The Government contends that we lack jurisdiction because

the BIA’s decision that Maldonado failed to establish the requisite battery or extreme
                                             3
cruelty was a discretionary decision not subject to judicial review, and absent jurisdiction

to review this decision, we also lack jurisdiction to review the BIA’s other

determinations. The Government recognizes that we retain jurisdiction over colorable

constitutional claims and questions of law, but argues that Maldonado has presented no

such question in connection with the BIA’s determination that she failed to establish

extreme cruelty.

              We conclude that it is unnecessary to decide our jurisdiction to review the

BIA’s decision that Maldonado failed to establish battery or extreme cruelty for purposes

of reopening her proceedings because, as discussed below, her brief presents colorable

constitutional claims and questions of law for our review. Although we ultimately

conclude that these questions lack merit, they are sufficient to confer jurisdiction over the

petition for review. See 8 U.S.C. § 1252(a)(2)(D).

              Maldonado first contends that the BIA applied the wrong legal standard in

deciding whether her marriage was entered into in good faith, an element of her prima

facie case for adjustment of status. She argues that the statute requires that the marriage

was entered into in good faith “by the alien,” 8 U.S.C. § 1154(a)(1)(A)(iii)(I)(aa), and

that the BIA failed to focus on whether she entered into the marriage in good faith, as

evidenced by its reliance on its earlier decision denying the joint petition with her

husband to remove the conditions on permanent residence.




                                              4
              As noted by the Government, the BIA stated in its decision that Maldonado

was required to show that “her marriage to her husband, Mr. Maldonado, was in good

faith.” A.R. at 3 (emphasis added). In addition, the BIA’s decision reflects that it did not

decide that Maldonado could not make the requisite showing based on the finding in the

proceedings on her joint petition. Rather, the BIA considered the documents submitted

by Maldonado and concluded that the new evidence did not offset the evidence of record

regarding the bona fides of her marriage, which cast doubt on whether she and her

husband lived together. In light of the evidence presented in support of the motion to

reopen, which as to the bona fides of the marriage primarily consists of Maldonado’s

statement, Maldonado has not shown that the BIA applied the wrong legal standard.

              Maldonado also argues that she was deprived of due process because the

BIA failed to make an individualized determination in her case. Relying on our decision

in Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008), Maldonado contends the BIA

made conclusory statements about the insufficiency of the evidence and failed to conduct

any meaningful analysis of the evidence submitted in support of her motion to reopen. In

Zheng, we remanded the matter to the BIA because the BIA had failed to discuss most of

the evidentiary record in its decision denying reopening. Id. at 269.

              The BIA’s decision reflects that the BIA made an individualized

determination in Maldonado’s case. On the issue of the bona fides of her marriage, the

BIA addressed a spousal support order Maldonado had submitted in support of her

                                             5
motion to reopen and explained that the order only established the legality of her

marriage. Although Maldonado faults the BIA for failing to address her statement that

her husband lied in the prior proceedings to make it appear that their marriage was a

sham, the BIA acknowledged this allegation in its decision. The BIA did not further

discuss Maldonado’s statement that her husband had lied, but she has not shown that she

was prejudiced by any failure by the BIA in this regard. Maldonado’s allegations that her

husband lied in the prior proceedings are unsupported. In addition, Maldonado’s

allegations primarily concern the fact that she was unaware of the contents of her

husband’s tax filings and other actions he had taken, which the BIA found raised

questions as to whether Maldonado and her husband lived together.

              The BIA also addressed in its decision Maldonado’s affidavit and medical

notes dated March 7, 2007, which she submitted to support her claim of spousal abuse.

The BIA found the documents inconsistent as to when Maldonado claimed she

discovered that her husband was unfaithful. The BIA further noted that Maldonado

stated that her husband forced her to engage in a certain sexual activity, but the medical

notes stated only that she refused to engage that activity with her husband. Contrary to

Maldonado’s argument, the BIA thus explained why her evidence did not support her

claim that she was subject to battery or extreme cruelty.

              Maldonado also asserts that the BIA’s conclusory statement that she failed

to provide objective evidence supporting her claim of battery or extreme cruelty offends

due process in light of the evidence of her ongoing psychological treatment. To the
                                             6
extent Maldonado is referring to the invoices reflecting payments to a psychological

center, we find no error in the fact that the BIA did not address these invoices, as they do

not support the conclusion that Maldonado was subjected to battery or extreme cruelty.1

              Accordingly, we will deny the petition for review.




       1
         To the extent Maldonado also argues that the BIA erred by failing to cite in its
decision any cases addressing the VAWA or involving similar facts and law, Maldonado
has not established any error in this regard.
                                             7
