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


11-2-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3449




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 03-3449

                                  SORY TOUNKARA,

                                             Petitioner

                                              v.

                     JOHN ASHCROFT, ATTORNEY GENERAL
                            OF THE UNITED STATES

                                             Respondent

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 20, 2004

                           Before: McKEE, Circuit Judges,
                       ROSENN and WEIS, Senior Circuit Judges.

                               (Filed: November 2, 2004)

                                        OPINION

McKEE, Circuit Judge.

      Sory Tounkara argues that the Board of Immigration Appeals (“BIA”) erred in

affirming a ruling of an Immigration Judge (“IJ”) denying his request for a waiver of the

joint filing requirement to remove conditions from his permanent residency. He claims

that the denial was not supported by substantial evidence. Specifically, Tounkara argues

that the IJ and BIA erroneously based their decision on evidence of his separation from
his wife three and a half years after their marriage rather than on their intent at the time of

their marriage. For the reasons that follow, we will dismiss the petition for review for

lack of jurisdiction.

                                              I.

       Because we write only for the parties, it is not necessary to recite the facts of this

case in detail. It is sufficient to note that Mr. Tounkara, who was admitted to the United

States on November 29, 1989 and whose status was adjusted to that of a conditional

permanent resident on April 22, 1993 based on his marriage to Felicia Shanell Fields

approximately nine months earlier, had his Petition to Remove the Conditions on

Residence denied by the INS and his conditional residency was terminated. The INS

subsequently commenced removal proceedings against Mr. Tounkara by filing a Notice to

Appear (“NTA”) in immigration court. The NTA charged that Mr. Tounkara was

removable pursuant to 8 U.S.C. § 1227(a)(1)(D)(I), as an alien whose conditional

permanent resident status had been terminated pursuant to the specific provision of 8

U.S.C. § 1186a. That provision required Mr. Tounkara and his wife to appear for

interviews with the INS.

       After hearing testimony during Mr. Tounkara’s removal hearing, the IJ concluded

that Mr. Tounkara was subject to removal as charged and that, in light of Mr. Tounkara’s

conduct before, during and after his marriage to Ms. Fields, Mr. Tounkara failed to meet

his burden of demonstrating that his marriage was bona fide and that he was eligible for a



                                               2
waiver pursuant to 8 U.S.C. § 1186a(c)(4)(B). Mr. Tounkara’s conduct, the IJ concluded,

suggested that the marriage was entered into “for the purpose of obtaining a benefit

under” the Immigration and Naturalization Act (“INA”), not in good faith. The BIA

affirmed the IJ’s ruling, and this appeal followed.

                                             II.

       There are two ways that the conditions imposed on a conditional permanent

resident’s status may be removed. The alien and his or her citizen spouse may file a joint

petition to remove the condition under § 216(c)(1) of the INA or the alien may file an

application for waiver of the requirement to file the joint petition under § 216(c)(14). 8

U.S.C. § 1186a(c)(1), (c)(4). In order to qualify for the waiver under 8 U.S.C. §

1186a(c)(4)(B), the alien must demonstrate that “the qualifying marriage was entered into

in good faith by the alien spouse, but the qualifying marriage has been terminated . . . and

the alien was not at fault in failing to meet the requirements of paragraph (1).” A central

question in establishing the requisite “good faith” is whether the couple intended to

establish a life together at the time they were married. Bark v. INS, 511 F.2d 1200 (9th

Cir. 1975). In making this determination, courts have considered evidence of the parties’

conduct before, during and after the marriage. See Lutwak v. United States, 344 U.S. 604

(1953); Garcia-Jaramillo v. INS, 604 F.2d 1236 (9th Cir. 1979) (considering such

evidence under 8 U.S.C. § 1186a(b)(1)(A)(I), which authorizes the Attorney General to

terminate the permanent residency status of an alien when “the qualifying marriage . . .



                                             3
was entered into for the purpose of procuring an alien’s admission as an immigrant”).

                                               III

       While we ordinarily have jurisdiction to review a final removal order under 8

U.S.C. § 1252(a), Congress has provided that:

              Notwithstanding any other provision of law, no court shall have
       jurisdiction to review –

       (i) any judgment regarding the granting of relief under section 1182(h), 1182(i),
       1229b, 1229c, or 1255 of this title, or

       (ii) any other 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.

8 U.S.C. § 1252(a)(2)(B).

       “Subchapter” in § 1252(a)(2)(B)(ii), refers to Subchapter II of Chapter 12 of Title

8, U.S. Code, which includes 8 U.S.C. § 1186a. Subsection (c)(4) of § 1186a establishes

a series of waivers, pursuant to which,

              The Attorney General, in the Attorney General’s discretion, may remove
       the conditional basis of the permanent resident status for an alien who fails to
       meet the requirements of paragraph (1) . . .1

       . . . In acting on applications under this paragraph, the Attorney General shall
       consider any credible evidence relevant to the application. The determination
       of what evidence is credible and the weight to be given that evidence shall be
       within the sole discretion of the Attorney General.




   1
    Under paragraph 1, the alien spouse and petitioning spouse must submit a petition
requesting the removal of the conditional basis and must appear for a personal interview
with an immigration officer. 8 U.S.C. § 1186a(c)(1).

                                           4
8 U.S.C. § 1186a(c)(4). An alien may qualify for one of these waivers if he or she can

demonstrate that “the qualifying marriage was entered into in good faith by the alien

spouse, but the qualifying marriage has been terminated . . . and the alien was not at fault

in failing to meet the requirements of paragraph (1).” 8 U.S.C. § 1186a(c)(4)(B).

       The Attorney General’s discretion in deciding whether or not to grant Mr.

Tounkara’s requested good faith waiver is clearly “specified” within the scope of 8

U.S.C. § 1186(c)(4). Thus, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we are divested of

jurisdiction over Mr. Tounkara’s claim absent more than appears on this record. Urena-

Tavarez v. Ashcroft, 367 F.3d 154, 159-60 (3d Cir. 2004) (holding that 8 U.S.C. §

1252(a)(2)(B)(ii) bars judicial review of discretionary denial of waivers under 8 U.S.C. §

1186a(c)(4).)

       Similarly, we are without jurisdiction to reconsider the evidence before the IJ

since, pursuant to § 1186a(c)(4), “[t]he determination of what evidence is credible and the

weight to be given that [is] within the sole discretion of the Attorney General.”

       Therefore, for the above reasons, we will dismiss the petition for review for lack of

jurisdiction.




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