                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                Nos. 17-1292 and 17-3217
                                     _____________

                                 ALI FARES SAMARA,
                                                           Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                           Respondent
                            ______________

                        On Petitions for Review of Orders of the
                             Board of Immigration Appeals
                                (BIA No. A078-492-776)
                    Immigration Judge: Honorable Rosalind K. Malloy
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 November 15, 2018
                                  ______________

           Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit Judges.

                            (Opinion Filed: January 29, 2019)
                                   ______________

                                       OPINION *
                                     ______________




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Petitioner Ali Fares Samara (“Samara”) challenges a final order of removal of the

Board of Immigration Appeals (“BIA”). In support of his challenge, Samara raises three

arguments. However, the first two arguments fail and the last is beyond this Court’s

jurisdiction. We will therefore deny in part and dismiss in part Samara’s petitions for

review.

                                   I. BACKGROUND

       Samara, a native of Jordan, came to the United States at the age of 34. Although

he entered the country legally, pursuant to a B-1 visitor visa, he unlawfully overstayed his

visa and began working at a convenience store in Philadelphia. Nearly three years later,

Samara married Rose Marie Martelli (“Martelli”), a United States citizen. Based on this

marriage, Samara received conditional lawful permanent resident (“CLPR”) status.

       Soon, Samara and Martelli jointly filed a Form I-751: Petition to Remove the

Conditions on Residence (“I-751”). Following an interview with Samara and Martelli,

however, the United States Citizenship and Immigration Services (“USCIS”) found that

their marriage was fraudulent and denied their I-751. Samara and Martelli filed a motion

to reopen the termination of their I-751 but that motion was also denied.

       A few years later, Samara filed a second I-751 on his own. This time, he

requested a waiver of the joint petition requirement on the grounds that, although he had

entered into his marriage with Martelli in good faith, it had terminated through divorce or

annulment. Following another interview, USCIS again concluded that Samara and

Martelli’s marriage was a sham and memorialized its findings in an investigative report

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drafted by Officer David Spaulding. As a result, USCIS denied Samara’s second I-751,

thus terminating his CLPR status.

       Based on these developments, the United States Department of Homeland Security

commenced removal proceedings against Samara, beginning with a Form I-862: Notice

to Appear (“NTA”). The NTA charged Samara with removability under

sections 237(a)(1)(A) and 237(a)(1)(D)(i) of the Immigration and Nationality Act of 1965

(“INA”), 8 U.S.C. § 1227(a)(1)(A) & (D)(i), based on marriage fraud and termination of

his CLPR status, respectively. Samara admitted to all allegations in the NTA, except the

allegation that his marriage to Martelli was a sham.

       After reviewing the record and conducting a merits hearing, at which Samara

testified, an immigration judge (“IJ”) issued a 19-page decision chronicling her findings

and conclusions. The decision highlighted a host of information detrimental to Samara,

including that Samara and his Jordanian ex-wife, whom he had allegedly divorced before

marrying Martelli, conceived a child and traveled internationally together after their

alleged divorce; Samara did not date or live with Martelli as long as he had originally

stated; Samara fathered a child with another woman while married to Martelli and

withheld this information in his I-751 proceedings; Samara presented false documents

and potentially used an imposter to pose as Martelli at the first USCIS interview; and

Samara paid Martelli lump sums every month.

       Upon finding that Samara’s testimony was “rife with inconsistencies” and even

“implausible,” the IJ determined that Samara’s testimony warranted an adverse

credibility finding. App. 24–25. The IJ then concluded that, even in the absence of the

                                             3
adverse credibility finding, Samara did not warrant a good faith marriage waiver because

he had not demonstrated that he and Martelli commingled assets, assumed joint liabilities,

or cohabitated after marriage; they did not have any children during their marriage; and

ample evidence indicated that Samara had married Martelli for immigration benefits. As

a result, the IJ denied Samara’s good faith marriage waiver application, terminated

Samara’s CLPR status, and ordered that Samara be removed to Jordan.

       Initially, Samara appealed the IJ’s decision to the BIA. The BIA, however, fully

affirmed the IJ’s decision and dismissed Samara’s appeal. A few months later, Samara

filed a motion to reopen and remand before the BIA, seeking to adjust his immigration

status based on his new marriage to Nehayah Saleh (“Saleh”), a United States citizen.

The BIA denied the motion, concluding that a new petition based on Samara’s marriage

to Saleh was “likely precluded” under section 204(c) of the INA, 8 U.S.C. § 1154(c),

given his prior sham marriage to Martelli. App. 7 (citation omitted).

       Before us, Samara now timely appeals both of the BIA’s decisions—(1) its

dismissal of his appeal of the IJ’s denial of his application for a good faith marriage

waiver (the “First Decision”) and (2) its denial of his motion to reopen and remand (the

“Second Decision”)—in a consolidated action. For the reasons set forth below, however,

we will deny in part and dismiss in part his petitions for review.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The IJ had authority to consider Samara’s good faith marriage waiver under 8

U.S.C. § 1186a(c)(4)(B). The BIA had jurisdiction to consider Samara’s appeal of the



                                              4
IJ’s decision under 8 C.F.R. § 1003.1(b)(3). It further had jurisdiction to consider

Samara’s motion to reopen and remand under 8 C.F.R. § 1003.2(a).

       Our jurisdiction arises under 8 U.S.C. § 1252(a)(1). We typically review the

BIA’s opinion as a final agency decision, but where, as here, the BIA “invokes specific

aspects of the IJ’s analysis and fact-finding,” we review both decisions. Green v. Att’y

Gen., 694 F.3d 503, 506 (3d Cir. 2012) (citing Voci v. Gonzales, 409 F.3d 607, 613 (3d

Cir. 2005)). While we lack jurisdiction to review, like here, the agency’s discretionary

decision to deny a good faith marriage waiver application, 8 U.S.C. § 1252(a)(2)(B)(ii),

we retain jurisdiction to address constitutional and legal issues, id. § 1252(a)(2)(D). We

review such constitutional and legal issues de novo but give deference under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the

agency’s interpretation of the INA. Green, 694 F.3d at 506 (citing Sarango v. Att’y Gen.,

651 F.3d 380, 383 (3d Cir. 2011)).

                                     III. DISCUSSION

       On appeal, Samara raises three arguments as to why this Court should reverse the

BIA’s decisions: the BIA erred by affirming (1) the IJ’s application of an overly

burdensome legal standard; (2) the IJ’s consideration of the USCIS report; and (3) the

IJ’s reliance on Martelli’s hearsay and credibility. Because the first two arguments are

unavailing and the last touches on matters beyond this Court’s jurisdiction, we will deny

in part and dismiss in part Samara’s petitions.




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            A. Samara Has Waived Any Claim Regarding the Second Decision

       As a preliminary matter, Samara purports to appeal via this consolidated action

both the First Decision and the Second Decision. Indeed, his first petition for review

refers to the First Decision and his second petition for review refers to the Second

Decision. But his opening brief fails to address any aspect of the Second Decision.

Accordingly, he has waived any claim regarding the Second Decision and we therefore

decline to address it. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (citations

omitted).

                     B. The IJ Applied the Correct Legal Standard

       Notwithstanding the jurisdictional bar to our reviewing the BIA’s factual or

discretionary determinations, we still retain jurisdiction over any constitutional claims or

questions of law. Sukwanputra v. Gonzales, 434 F.3d 627, 633–34 (3d Cir. 2006)

(citations omitted). Samara’s first argument raises a question of law: that the IJ applied

an overly burdensome legal standard in evaluating his application for a good faith

marriage waiver. See Fadiga v. Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007)

(citations omitted) (noting that whether an agency applies the correct legal standard is a

question of law).

       In particular, Samara avers that the IJ improperly applied—and the BIA erred in

affirming the IJ’s application of—an overly stringent “heavy burden of proof” standard.

Pet.’s Br. 9. (quoting App. 24–25). The alleged error stems from a sole sentence in the

IJ’s 19-page decision, where she stated the legal standard applicable when a petitioner

has previously withdrawn a prior visa petition based on an admission of fraudulent

                                              6
marriage. See App. 24 (citing Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983)). Here,

Laureano is inapposite for two reasons: (1) Samara’s first petition was denied by USCIS,

not withdrawn by him; and (2) Samara’s first petition yielded a determination by USCIS

that the marriage was fraudulent, not such an admission from Samara or Martelli.

Instead, Samara should have been held to a “preponderance of the evidence” standard.

E.g., Boluk v. Holder, 642 F.3d 297, 302 (2d Cir. 2011) (citation omitted); Lara v. Lynch,

789 F.3d 800, 804 (7th Cir. 2015); Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1148 (9th

Cir. 2005).

       Samara first raised this argument in his appeal to the BIA. But the BIA squarely

addressed and rejected it. Though it acknowledged that the IJ indeed stated “heavy

burden” instead of mere “burden,” the BIA still affirmed the IJ’s decision, reasoning that

she nonetheless applied the correct legal standard. App. 4. In doing so, the BIA

explained that, as to the dispositive question of whether Samara and Martelli intended to

establish a life together upon marriage, the IJ correctly denied Samara’s good faith

marriage waiver application.

       Now before us, Samara essentially seeks to relitigate the BIA’s disposition of this

same argument. But the BIA did not err in affirming the standard applied by the IJ. As

the BIA itself explained, although the IJ may have misstated the legal standard, she

applied the correct one, evidenced chiefly by her citations to, and reliance upon, cases

employing the correct standard. In other words, the IJ’s only error was one of

nomenclature, not application. Especially in light of the overwhelming evidence in the

record that supports the IJ’s finding that Samara’s marriage to Martelli was a sham, we

                                             7
deem such error of nomenclature to be harmless where, as here, the application was

correct and it is thus highly probable that the error did not affect the outcome of the case.

See Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (citations omitted); see

also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 402 (2d Cir. 2005) (stating that

remand is unnecessary “where the IJ or BIA’s reliance on an erroneous aspect of its

reasoning is so tangential that there is no realistic possibility that the outcome would be

different on remand” or “where—notwithstanding admitted errors—overwhelming

evidence supporting the administrative adjudicator’s findings makes it clear that the same

decision would have been reached in the absence of the errors” (citations omitted)).

Samara’s argument is therefore futile.

                  C. Samara Cannot Show the IJ’s Consideration of the
                      USCIS Report Substantially Prejudiced Him

         Samara next argues that the BIA erred in affirming the IJ’s decision because the IJ

improperly considered the USCIS investigative report drafted by Officer Spaulding that

speculated, in a parenthetical, that an imposter may have posed as Martelli in an

interview. More specifically, Samara claims that the IJ’s consideration of the report

constitutes a due process violation because he did not have an opportunity to cross-

examine Officer Spaulding. Such due process claims are, of course, constitutional in

nature and thus within our jurisdiction. Singh v. Gonzales, 432 F.3d 533, 537 (3d Cir.

2006).

         Due process in the context of an immigration hearing requires that individuals

“threatened with deportation are provided the right to a full and fair hearing that allows


                                              8
them a reasonable opportunity to present evidence on their behalf.” Abdulrahman v.

Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003) (citation and internal quotation marks

omitted). In particular, due process requires that such an individual: (1) is entitled to

fact-finding based on a record produced before the decision maker and disclosed to her;

(2) must be allowed to make arguments on her own behalf; and (3) has the right to an

individualized determination of her interests. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d

Cir. 2001) (citations and quotations omitted).

       Here, however, we need not decide whether the agency erred in considering the

USCIS report without giving Samara an opportunity to cross-examine Officer Spaulding.

Even assuming error, Samara must still show substantial prejudice in order to prevail on

his due process claim. See Singh, 432 F.3d at 541 (citing Bonhometre v. Gonzales, 414

F.3d 442, 448 (3d Cir. 2005)). But he cannot do so.

       Although the IJ indeed discussed the contents of the USCIS report in her recitation

of the documentary evidence in the record, she only relied on it in a sole paragraph

among the nearly five pages of her decision devoted to her findings. Moreover, that

paragraph appeared only in her analysis of why Samara deserved an adverse credibility

finding. As to the dispositive question of whether to grant Samara’s good faith marriage

waiver application, the IJ explicitly stated that, “even absent [her] adverse credibility

finding,” Samara did not demonstrate that he warranted a waiver. App. 26. The BIA did

not even mention, much less rely on, the USCIS report in affirming the IJ’s decision.

       In light of the overwhelming record evidence that supports the IJ’s finding that

Samara’s marriage to Martelli was a sham, we cannot discern any prejudice—much less

                                              9
substantial prejudice—by virtue of the USCIS report’s inclusion in the record. Because

Samara cannot show such prejudice, his due process argument is unavailing.

    D. We Lack Jurisdiction to Address the Agency’s Weighing of the Evidence

       Samara’s third argument concerns the IJ’s evaluation of the evidence. In

particular, he contends that the BIA erred in affirming the IJ’s decision because she

improperly weighed Martelli’s testimony and evidence of lump sum payments. But we

have consistently held that “arguments such as that an [IJ] or the BIA incorrectly weighed

evidence, failed to consider evidence[,] or improperly weighed equitable factors are not

questions of law” subject to judicial review. Jarbough v. Att’y Gen., 483 F.3d 184, 189

(3d Cir. 2007). Thus, we lack jurisdiction to address this argument. See Sukwanputra,

434 F.3d at 634 (citations omitted).

                                   IV. CONCLUSION

       For the foregoing reasons, we will deny in part and dismiss in part Samara’s

petitions for review.




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