                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3566

M AZENAH D UAD,
                                                           Petitioner,
                                v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                       Respondent.


          On Petition for Review of a Final Order of the
                 Board of Immigration Appeals.
                         No. A 29 483 550



   A RGUED S EPTEMBER 9, 2008—D ECIDED F EBRUARY 12, 2009




 Before B AUER, C UDAHY, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. Mazenah Duad is a 65-year-old
native and citizen of Malaysia who is fighting deportation
charges. She entered the United States lawfully, but she
failed to leave when required. As a result, she was
charged by the former Immigration and Naturalization
Service with overstaying her permitted time and she was
placed in deportation proceedings on January 11, 1996. As
we explain in more detail below, those proceedings
2                                               No. 07-3566


dragged on while the immigration authorities considered
the question whether Duad was entitled to adjust her
status based on her marriage to a U.S. citizen. Eventually
she withdrew that application and requested only suspen-
sion of deportation. First an immigration judge (“IJ”) and
later the Board of Immigration Appeals (“Board” or “BIA”)
denied that request, and Duad now petitions for review
of that decision. We lack jurisdiction over Duad’s com-
plaint that the Board erred when it found that she had
not established extreme hardship; to the extent she
has presented legal arguments, we find no merit in
them. We therefore deny her petition for review.


                             I
  Duad grew up in both Singapore and Malaysia; she
then attended the Japanese Art School, in Tokyo, for her
higher education. In 1963, she married a Malaysian man,
Abdullah Mazlan, with whom she had two sons and a
daughter. Duad and Mazlan divorced in 1976, apparently
because Mazlan decided to take on two additional
wives. After the divorce, Duad stayed in Malaysia for a
time. In 1984, she took a job in the United States as a non-
immigrant, working with the Malaysian Consulate as a
student counselor. Since that time, she has resided con-
tinuously in the United States, leaving the country only
twice on work-related matters, each time for a period of
no more than 10 days. Her daughter has become a legal
permanent resident and is married to a U.S. citizen; her
grandchildren also reside in the United States.
No. 07-3566                                             3

  In the late 1980s, Duad converted from Islam to Bud-
dhism. In 1989, she met and married Kimberly Shastal, a
U.S. citizen and another Buddhist. This marriage lasted
for nearly two years, but it broke up when Shastal had an
affair and got another woman pregnant. Before the mar-
riage ended, however, Shastal filed an I-130 petition
seeking to adjust Duad’s status to that of a permanent
resident. The INS denied his petition on February 19,
2004, finding that the marriage was a fraud.
  Shortly after her divorce from Shastal was final, in
November 1991, Duad married a Jewish man named
Michael Baraz, another U.S. citizen. The two lived in a
Chicago suburb, and Duad ran a small daycare service
from their home. In October 1998, a child named Gabriella
who had been in Duad’s care died from a cerebral
hematoma. Duad was charged with homicide, but after
a trial, she was acquitted. Gabriella’s parents then sued
for wrongful death; that case ended when Baraz’s insur-
ance company agreed to a monetary settlement of
$693,000. Later, the state authorities revoked Duad’s
daycare license. Duad then worked odd jobs (without,
she concedes, employment authorization) and took
courses at National-Louis University and Triton College.
In late 2004, she and Baraz began divorce proceedings
to end their 13-year marriage.
  Duad would have liked to stay in the United States for
a number of reasons. First, she has no close family in
Malaysia; all of her living children and grandchildren are
in the United States. Second, she asserts that she fears
religious persecution, because Malaysia is predominantly
4                                             No. 07-3566


Muslim and is intolerant toward both Buddhism and
Judaism. Also, because the retirement age in Malaysia is
55, Duad fears that she would be unable to support
herself there.
   By the time all was said and done, the only question
before the IJ was whether Duad was entitled to suspen-
sion of deportation pursuant to the former § 244(a)(1) of
the Immigration and Nationality Act. See 8 U.S.C. § 1254,
repealed by Pub. L. No. 104-208, as set forth in 8 U.S.C.
§ 1101 note. In order to be qualified for that relief, the
IJ continued, Duad had to show three things: (1) that she
had been physically present in the United States for
a continuous period of not less than seven years immedi-
ately preceding the date of her application; (2) that she
had been a person of good moral character during that
time; and (3) that her deportation would result in extreme
hardship to herself or to her U.S. citizen children. Only
the second and third elements were at issue. Giving
Duad the benefit of the doubt, the IJ concluded that he
could not find as a matter of law that she lacked good
moral character based on either her fraudulent marriage
to Shastal or the unfortunate death of Gabriella. Turning
to the “extreme hardship” factor, however, the IJ weighed
the equities on both sides of the question. He acknowl-
edged that deportation would cause hardship to Duad,
but he also observed that country conditions in Malaysia
were not as bleak as she painted them to be. After summa-
rizing the various pertinent facts, the IJ concluded as
follows:
No. 07-3566                                                 5

     In assessing [Duad’s] case, I have weighed the
   favorable factors . . . against the adverse factors in this
   case. It is the assessment of this Judge that given
   the negative factors, specifically the visa fraud and
   the reports of child injuries and the death of
   Gabriella . . ., that these favorable factors are not
   able to outweigh the negative factors in the case.
The IJ thus denied her request for suspension of deporta-
tion.
  Duad appealed to the BIA, which adopted the IJ’s
decision with additional comments on the question of
hardship. It reviewed the facts again and expressly agreed
that the negatives outweighed the positives in her case.
The Board added that Duad conceded that she was
deportable as charged, and that it was her burden to
establish that any requested relief should be granted in
the exercise of discretion. The IJ, it held, did not abuse
that discretion when he decided to deny suspension of
deportation. Finally, in response to Duad’s complaint on
appeal that the IJ had violated her due process rights
and statutory rights to a fair hearing, the Board found
that the procedures had been adequate. The IJ, it thought,
had not relied on the documentary evidence that she
was challenging. Although a letter of December 2, 1999,
from Illinois’s Department of Children and Family
Services (“DCFS”) was technically hearsay, the Board
held that it could nonetheless be considered when deter-
mining an alien’s eligibility for relief from removal.
6                                               No. 07-3566


                             II
  Duad’s petition for review raises two primary argu-
ments: first, that the Board erred in its acceptance of the
hearsay documents and violated Duad’s right to due
process in doing so; and second, that these documents
were all that permitted the IJ “to come to his holding
that petitioner did not meet the requirement of good
moral character.” To the extent that this operates as a
concession that this court lacks jurisdiction to review the
merits of the hardship finding, it is a wise step to take.
As a result of 8 U.S.C. § 1252(a)(2)(B)(ii), we have no
jurisdiction to review the Attorney General’s denial of
discretionary relief. See, e.g., Kucana v. Mukasey, 533 F.3d
531, 538 (7th Cir. 2008). Constitutional claims and ques-
tions of law, in contrast, do lie within our jurisdiction, by
virtue of 8 U.S.C. § 1252(a)(1)(D).
  The government begins by urging us to reject Duad’s
petition at the threshold because the BIA’s decision was
based on two independent grounds (the failure to show
extreme hardship and the permissibility of using the
contested evidentiary materials), and our lack of jurisdic-
tion over the hardship ground leaves it in place as a
justification for the denial of relief. This position
depends, however, on a finding that the constitutional
and legal arguments that Duad wants to present are
wholly separate from the hardship finding. She argues
that they are not, and that if the contested materials
had been excluded, then the Board might have reached
a different conclusion on hardship.
No. 07-3566                                                7

   Looking at this record, we are inclined to agree with
the Board that the contested materials played little or no
role in the IJ’s decisionmaking process. The IJ had before
him a decision from the Board dated October 6, 2005, in
which it found that substantial and probative evidence
existed showing that Duad’s marriage to Shastal was
entered into for purposes of evading the immigration
laws. The IJ also heard oral testimony about Gabriella’s
death and the investigation surrounding it. Duad
herself testified about the incident. This evidence,
standing alone, would have been enough to support the
IJ’s finding that on balance Duad did not merit withhold-
ing of deportation. Although Duad suggests that the IJ
also found that she was not of good moral character, this
is a misreading of his opinion. In fact, as we noted earlier,
the IJ concluded that the facts did not support such a
finding. What he did instead was to weigh those same
facts insofar as they bore on the hardship issue. There is
no legal bar against his doing so, and (to repeat) we
have no jurisdiction to consider the factual soundness of
his conclusion.
  Duad also argues that the IJ’s decision to admit various
unsworn documents violated her due process rights.
Nothing in the due process clause, however, precludes
the use of hearsay evidence in administrative immi-
gration proceedings. Cf. Richardson v. Perales, 402 U.S. 389,
402 (1971) (permitting use of hearsay evidence in Social
Security disability administrative proceedings). Indeed,
such a rule would severely penalize many asylum
seekers, who manage to slip out of their country of origin
with only a few crucial documents and other written
8                                              No. 07-3566


materials that could never be authenticated by
traditional courtroom practices. Granting the fact that
the evidence must, in the final analysis, be reliable, see
Niam v. Ashcroft, 354 F.3d 652, 659 (7th Cir. 2004), we see
nothing in the documents here that would render them
so suspect that the Constitution would be violated by
their use. Duad appears to be most concerned about the
December 2, 1999, letter from DCFS, informing her that
it was referring her daycare center to the Central Office
of Licensing with a recommendation that her license be
revoked and her application for renewal be denied.
Duad’s lawyer did not receive a copy of that letter until
the morning of the proceeding, and Duad now complains
both that the letter was highly prejudicial and that this
was a fundamentally unfair way to proceed.
  There was nothing unreliable about the letter, how-
ever, and Duad herself knew even before the proceeding
that DCFS had taken exactly the steps that the letter
outlined. We can appreciate her lawyer’s dismay when
he realized that he would need to contend with this
damning piece of evidence, on top of everything else,
but he had no legal right to avoid it. Importantly, the
letter did not introduce an entirely new theory or line of
inquiry into the case, and so Duad was not prejudiced
in the legal sense of the term by its late disclosure.
  In summary, we have no jurisdiction to review the
Board’s conclusion that Duad has not shown the kind of
extreme hardship necessary to earn suspension of deporta-
tion; to the extent that she has raised legally cognizable
No. 07-3566                                        9

arguments in this petition, we reject them and D ENY
the petition for review.




                       2-12-09
