     06-1740-ag
     Barnaby-King v. U.S . Dep ’t of Ho meland Security
 1
 2
 3                                 UNITED STATES COURT OF APPEALS
 4
 5                                        FOR THE SECOND CIRCUIT
 6
 7
 8
 9                                                 August Term, 2006
10
11      (Submitted: February 13, 2007                                      Decided: May 10, 2007)
12
13                                              Docket No. 06-1740-ag
14
15
16
17
18
19         MAUREEN ELIZABETH BARNABY-KING, also known as Maureen Elizabeth King
20
21                                                        Petitioner,
22
23                                                          – v. –
24
25                THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
26
27                                                        Respondent.
28
29
30
31
32
33   Before: WALKER, CALABRESI, Circuit Judges, and COTE, District Judge.*
34
35           On petition for review from a decision of the Board of Immigration Appeals, denying
36   petitioner’s applications for a waiver under § 212(i) of the Immigration and Nationality Act,
37   codified at 8 U.S.C. § 1182(i), and adjustment of status under 8 U.S.C. § 1255(i). The petition
38   for review is DENIED.
39
40


             *
 1          The Honorable Denise Cote, United States District Judge for the Southern District of
 2   New York, sitting by designation.

                                                              -1-
 1                                           Frederick P. Korkosz (Katelyn Thoms, on the brief),
 2                                           Albany, NY, for Petitioner.
 3
 4                                           Jeffrey P. Ray, Assistant United States Attorney, for
 5                                           Bradley J. Schlozman, United States Attorney for the
 6                                           Western District of Missouri, Kansas City, MO, for
 7                                           Respondent.
 89
10
11
12    PER CURIAM:

13           Petitioner Maureen Elizabeth Barnaby-King (“Barnaby-King” or “petitioner”), a native

14    and citizen of Jamaica, asks our court to review a March 22, 2006 order of the Board of

15    Immigration Appeals (“BIA”) which affirmed — but based on its own independent review of the

16    record, and while assuming that Barnaby-King and her husband testified truthfully — the

17    judgment of Immigration Judge (“IJ”) Philip Montante, Jr., No. A-77-900-136 (Oct. 25, 2004).

18    Specifically, the BIA concluded that petitioner had failed to prove the statutory threshold of

19    “extreme hardship” to a qualifying relative under § 212(i) of the Immigration and Nationality Act

20    (“INA”), codified at 8 U.S.C. § 1182(i). Because it was, in light of this failure alone, that the

21    BIA denied the petitioner’s application for adjustment of status under 8 U.S.C. § 1255(i), the

22    BIA expressly refused to consider the propriety (1) of the IJ’s decision to decline to grant a §

23    212(i) waiver also as a matter of discretion, and (2) of the IJ’s decision denying the petitioner’s

24    request for a continuance, which Barnaby-King requested so that she could present documents

25    both corroborating her and her husband’s testimony and going to her own good moral character.

26    For the same reasons, the BIA declined to adopt the IJ’s adverse credibility finding.

27                                              DISCUSSION

28           In her petition to this court, Barnaby-King’s principal argument is that the IJ erred in


                                                       -2-
 1   denying her § 212(i) waiver and adjustment of status applications by applying an “erroneous

 2   standard of law.” She also argues that the IJ deprived her of due process and abused his

 3   discretion by denying her motion for a continuance. And finally, Barnaby-King argues that the

 4   IJ’s adverse credibility finding was in error. At no point, however, does Barnaby-King argue that

 5   the BIA’s reasoning was also flawed and, moreover, she cannot be said to have done so

 6   inadvertently, because the BIA’s separate opinion does not appear to have repeated any of the

 7   IJ’s alleged mistakes.

 8          In response to Barnaby-King’s petition, the government argues that the BIA properly

 9   decided that Barnaby-King was not statutorily entitled to a waiver of inadmissibility and that, in

10   any event, the BIA’s decision on this point is not subject to appellate review in light of Jun Min

11   Zhang v. Gonzales, 457 F.3d 172 (2d Cir. 2006). In addition, the government contends that

12   appellate review of the IJ’s ruling regarding a continuance is futile because it is not relevant to

13   the dispositive ground relied upon by the BIA. The government also argues that, since the IJ’s

14   adverse credibility finding was not adopted or relied upon by the BIA, it is not at issue on appeal.

15   I.     Zhang might no longer be controlling precedent

16          At the outset, we note that — contrary to the government’s assertion — we might not be

17   precluded by Zhang from considering whether we have jurisdiction to review the BIA’s “extreme

18   hardship” determination. The panel in Zhang did hold that “a finding of ‘extreme hardship’

19   under 8 U.S.C. § 1182(i) is a discretionary judgment committed to the BIA . . . and that 8 U.S.C.

20   § 1252(a)(2)(B)(i) precludes us from reviewing such a judgment.” Zhang, 457 F.3d at 174. But

21   this holding was required by the reasoning of an earlier opinion of this court, De La Vega v.

22   Gonzales, 436 F.3d 141 (2d Cir. 2006). See Zhang, 457 F.3d at 175 (“Because these hardship


                                                      -3-
 1   determinations are made in the same manner under practically identical standards and because

 2   De La Vega holds that the cancellation-of-removal hardship determination is discretionary, we

 3   join the Fourth Circuit in holding that the § 1182(i) hardship determination is discretionary as

 4   well.”); see also id. at 179-80 (Calabresi, J., concurring) (“Because I believe this case is not, in

 5   relevant part, distinguishable from De La Vega . . . I concur . . . . I am less sure, however, that De

 6   La Vega was correct that the hardship determination in that case was not, in fact, one of statutory

 7   construction.”). And the decision in De La Vega, in turn, relied partly on reasoning in Xiao Ji

 8   Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. 2006) (“Xiao Ji Chen I”). See De La Vega,

 9   436 F.3d at 146 (“Applying the principle articulated in Xiao Chen . . . to the context of

10   cancellation of removal, we hold that we lack jurisdiction to review the BIA’s discretionary

11   judgment . . . .”).

12           The opinion in Xiao Ji Chen I, however, has recently been significantly revised. See Xiao

13   Ji Chen, 471 F.3d 315, 319 (2d Cir. 2006) (“Xiao Ji Chen II”) (“We hereby grant the petition for

14   rehearing of our January 6, 2006 opinion in this case . . . [and] revise substantially our analysis in

15   Part I of the earlier opinion as to what constitutes ‘questions of law’ under section

16   106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion

17   in its place.”). Importantly, for purposes of Barnaby-King’s petition, the revised opinion in Xiao

18   Ji Chen instructs that, because “Part I of the prior decision has been substantially revised,” any

19   “[d]ecisions of our Court that have relied on the authority of Part I of the January 6 opinion

20   should not be considered controlling to the extent that they interpreted the phrase ‘questions of

21   law’ more narrowly than does this revised opinion.” Xiao Ji Chen II, 471 F.3d at 319 n.**. And,

22   as noted above, the Zhang opinion relied implicitly on the “questions of law” reasoning in Xiao


                                                      -4-
 1   Ji Chen I.

 2           In light of all this, whether Zhang remains controlling precedent is an open question, and

 3   we are therefore presented in this case with what now possibly could, but might not, be an issue

 4   of first impression: whether we may properly exercise jurisdiction to review an “extreme

 5   hardship” determination where, as here, the BIA rested its decision solely on its view that a

 6   petitioner is “statutorily ineligible” for a § 212(i) waiver.

 7   II.     Barnaby-King failed to challenge the BIA’s decision

 8           We need not, and so do not, decide whether we are bound by Zhang in this case, however,

 9   because Barnaby-King has failed to challenge the BIA’s — as opposed to the IJ’s — decision.

10   The BIA did not adopt the IJ’s reasoning, but instead — after observing that the IJ’s opinion was

11   “not a model of clarity” — conducted its own review of the record evidence and concluded that

12   Barnaby-King failed to satisfy the statutory threshold of “extreme hardship.” The BIA therefore

13   did not address the IJ’s further conclusion that the § 212(i) waiver should also be denied as a

14   matter of discretion. In the circumstances of this case, it is the BIA’s decision alone that counts

15   for purposes of judicial review. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). In

16   focusing solely on specific errors in the IJ’s opinion, Barnaby-King has failed to offer us any

17   reason for disturbing the decision of the BIA.

18           Since the BIA assumed that Barnaby-King and her husband testified truthfully, and

19   expressly denied the § 212(i) waiver on the basis of statutory eligibility alone, petitioner’s

20   arguments about the IJ’s denial of a continuance and the adverse credibility finding cannot

21   constitute reasons to grant the petition for review.

22                                              CONCLUSION


                                                       -5-
1          We have considered the petitioner’s remaining arguments and find them to be without

2   merit. The petition for review is DENIED, and the pending motion for a stay of removal in this

3   petition is DENIED as moot.




                                                  -6-
