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


5-7-2004

Urena-Tavares v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1013




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                   PRECEDENTIAL        Peter D. Keisler
                                              Assistant Attorney General
                                              Civil Division
   UNITED STATES COURT OF              Jeffrey S. Bucholtz (Argued)
APPEALS FOR THE THIRD CIRCUIT                 Deputy Assistant Attorney General
                                              Civil Division
                                       David V. Bernal
            No. 03-1013                       Assistant Director
                                              Office of Immigration Litigation
                                       Russell J.E. Verby
    DANIEL URENA-TAVAREZ,                     Trial Attorney
                                              Office of Immigration Litigation
                   Petitioner          U.S. Department of Justice
                                       Washington, D.C. 20044
                  v.
                                              Attorneys for Respondent
 JOHN ASHCROFT, Attorney General
       of the United States,
                                              OPINION OF THE COURT
                   Respondent


                                       SLOVITER, Circuit Judge.
    Petition for Review of an Order            In this Petition for Review from a
 of the Board of Immigration Appeals   final order of removal entered by the
             (A44-445-342)             Board of Immigration Appeals (BIA) the
                                       Pe titione r, D a n i e l U r e n a -Tavare z
                                       (Tavarez),1 argues that the decision of the
      Argued January 15, 2004

 Before: SLOVITER, RENDELL, and           1
                                              Tavarez’s name is spelled
      ALDISERT, Circuit Judges         differently throughout the record and the
                                       briefs. He is referred to as “Tavares” in
         (Filed May 7, 2004)           the caption on all documents in the
                                       Administrative Record, A.R. at 2; as
                                       “Tavarez” on the title page of the
Steven Vosbikian (Argued)              Petitioner’s Brief but as “Tavares”
Vosbikian and Grady                    throughout, Pet’r Br. at 2; and as
Cherry Hill, NJ 08034                  “Tavarez” in the Government’s Brief,
                                       Gov’t Br. at 2. Because he signed and
     Attorney for Petitioner           printed his name as “Tavarez,” A.R. at
                                       341, we will refer to him herein as
Immigration Judge (IJ) was not based on           dating her for about six or seven months.
adequate findings of fact and that the BIA        Marriage of an alien to a United States
did not properly evaluate the IJ’s findings       citizen entitles an alien to obtain
against himself and his two minor                 conditional permanent resident status,
children. In considering the arguments,           Immigration and Nationality Act (INA) §
we find ourselves faced with a more               216(a)(1), 8 U.S.C. § 1186a(a)(1), and
fundamental and more generally applicable         Tavarez obtained such status on January 8,
question – one going to the statutory             1994 pursuant to an application filed by
limitation on our review of matters               Pineiro.3
committed to the Attorney General’s
                                                          Under the INA, the conditions on
discretion.
                                                  such status can be removed if “the alien
                    I.                            spouse and the petitioning spouse (if not
                                                  deceased) jointly . . . submit to the
       FACTS AND PROCEDURAL
                                                  Attorney General . . . a petition which
           BACKGROUND
                                                  requests the removal of such conditional
       Petitioner is a 61-year old native         basis . . . .” INA § 216(c)(1)(A), 8 U.S.C.
and citizen of the Dominican Republic,            § 1186a(c)(1)(A). 4      Pursuant thereto,
and his two children, Danny Zefar                 Tavarez and Pineiro filed a joint
Tavarez, age 15, and Daniela Zefar                application on December 1, 1995 to have
Tavarez, age 14, are also natives and             the conditions on Tavarez’s permanent
citizens of the Dominican Republic. It is         residence status removed, and an
unclear from the record when and in what          immigration officer from the then-
fashion Tavarez entered the United States,        Immigration and Naturalization Service
but on September 3, 1992, he married              (INS) scheduled the interview for
Eladia Pineiro,2 a citizen of the United
States, in Camden, New Jersey, after



“Tavarez.”
                                                     3
                                                          The Government concedes that
   2
        The Petitioner’s Reply Brief refers       the initial application, which is not part
to her as “Eladia Lopez,” Pet. Reply Br.          of the Administrative Record, was filed
at 6; the Government’s Brief refers to her        by Pineiro. Gov’t Br. at 6.
as “Elidia Pineiro,” Gov’t Br. at 6; and
                                                     4
the Administrative Record refers to her                   INA statutes will be cited both to
both as Eladia Pineiro” and “Elidia               their codifications in the INA and in Title
Pineiro,” A.R. at 336. Because her                8 of the United States Code the first time
signature appears to be “Eladia Pineiro,”         they are referenced in this opinion.
A.R. at 337, we will refer to her as              Subsequent citations will be to Title 8 of
“Eladia Pineiro” or as “Pineiro.”                 the United States Code.

                                              2
November 19, 1998.5 Shortly before the             anything.” A.R. at 134 (testimony of
interview with the immigration officer,            witness Carmen Sanchez). In the car ride
Tavarez and Pineiro quarreled over which           home, when Pineiro realized that Tavarez
of them was responsible for payment of             would be deported, “she started crying and
Pineiro’s share of the income taxes.               then hugged him and said, you know,
Tavarez left the room to use the men’s             sorry, I didn’t mean to do that. That’s not
room.       Pineiro was called into the            what I wanted to do, I just wanted to be
interview alone and told the immigration           out of the problem so I didn’t have to, you
officer that although she did not want to          know, pay the taxes . . . .” A.R. at 135-136
harm Tavarez, “she didn’t live with                (testimony of witness Carmen Sanchez).
[Tavarez] and she was a friend.” A.R. at           The INS District Director denied
134 (testimony of witness Carmen                   Tavarez’s application to remove the
Sanchez).       The immigration officer            condition on his permanent resident status;
reassured her by stating that she was not          thus his conditional status was deemed to
harming him. Pineiro then signed a sworn           have expired on January 8, 1996.
statement before the immigration officer,
                                                          Thereafter, the INS began
apparently prepared by the officer, stating
                                                   proceedings to remove Tavarez and his
that she and Tavarez never lived together
                                                   children by filing a Notice to Appear,
as a married couple and that they did not
                                                   charging that his status as a conditional
consummate the marriage. She also stated,
                                                   permanent resident was terminated
“I felt pity on him so I married him. I only
                                                   pursuant to 8 U.S.C. § 1186a, and that he
married her [sic] so she [sic] could obtain
                                                   obtained his immigrant status by fraud or
her [sic] legal permanent residence.” A.R.
                                                   willful misrepresentation of a material
at 337.
                                                   fact. The removal proceedings were
        When Tavarez came into the                 assigned to an IJ.
interview room, the immigration officer
                                                            It was incontestable that Pineiro had
informed him that he was no longer
                                                   w i th d ra w n h e r s u p po r t , t h e r e by
eligible for permanent resident adjustment
                                                   eliminating any possibility of change of
status because his wife withdrew the
                                                   Tavarez’s status on the basis of a joint
petition. Tavarez “looked at [his wife] and
                                                   applic ation.        Tav arez th en file d
said, what you trying to do? You crazy.
                                                   applications for a waiver of the obligation
Why you doing this? And all [Pineiro] did
                                                   to file a joint application. Under the INA,
was put her head down and didn’t answer
                                                   the Attorney General may waive the
                                                   obligation of a joint filing requirement for
   5                                               an alien and his spouse if (1) the removal
        The testimony given before the
                                                   would result in extreme hardship, (2) the
immigration officer is not in the
                                                   marriage terminated but was entered into
Administrative Record, but was reported
                                                   in good faith, or (3) the marriage was
to the IJ by witnesses at the two hearings
                                                   entered into in good faith but that the
held by him.

                                               3
citizen spouse either battered or subjected        Tavarez’s house, but stated that they were
the alien spouse to extreme cruelty. INA           all from the same neighborhood and that
§§ 216(c)(4)(A)-(C), 8 U.S .C. §§                  she “[saw] them all the time together.”
1186a(c)(4)(A)-(C). Tavarez based his              A.R. at 148. The IJ characterized Carmen
application on all three statutory                 Sanchez as a “rather compelling” and
exceptions.                                        “honest witness” in whose testimony he
                                                   placed “a great deal of credence.” A.R. at
        Sometime thereafter, Pineiro
                                                   40. The other witness for Tavarez was
divorced Tavarez. The IJ summarily
                                                   Danny Tavarez, Tavarez’s son, who
denied the waivers based on extreme
                                                   moved in with the couple in August 1997
hardship and battered spouse, stating that
                                                   after leaving the Dominican Republic, and
there was no or almost no evidence for
                                                   who testified that Pineiro prepared his
either.    The IJ then considered the
                                                   meals, picked out his school clothes, and
evidence from the hearing before him and
                                                   taught him how to do chores. A.R. at 262.
devoted a significant amount of his
                                                   The IJ found this testimony to “be worthy
decision to discussing the issue of whether
                                                   of some degree of belief.” A.R. at 40.
the marriage was entered into in good
faith. A waiver under INA § 216(c)(4)(B),                 In addition, Tavarez testified as did
8 U.S.C. § 1186a(c)(4)(B), permits                 his daughter. The final witness, Miguel
removal of the conditions on an alien’s            Espinal, a friend who attended the
permanent resident status without                  wedding, testified he would see the couple
requiring his spouse to petition jointly for       together, took them to the bank and
such removal if “the qualifying marriage           shopping, and cooked with them at their
was entered into in good faith by the alien        home. The IJ also considered Pineiro’s
spouse, but the qualifying marriage has            sworn statement in reaching his decision
been terminated (other than through the            that the marriage was not undertaken in
death of the spouse . . . ).” Id.                  good faith. Because the IJ concluded that
                                                   “this is a case of a friendship, of a
        The witnesses before the IJ
                                                   relationship of some sort but not a
included Carmen Sanchez, who assisted
                                                   marriage,” he denied the application for a
Tavarez and Pineiro in the preparation of
                                                   waiver of the joint filing requirement.
immigration documents, tax filings, and in
                                                   A.R. at 43. The IJ ruled that Tavarez is
translation at the immigration interview.
                                                   removable under section 237(a)(1)(D)(i) of
At the December 7, 1999 hearing before
                                                   the INA, 8 U.S.C. § 1227(a)(1)(D)(i),
the IJ, Sanchez testified that in Tavarez’s
                                                   because his status as a conditional
bathroom absence while waiting for the
                                                   permanent resident was terminated.
immigration officer’s hearing, Pineiro told
                                                   Tavarez appealed to the BIA, which
her that unless Tavarez paid her share of
                                                   affirmed the decision of the IJ, concluding,
the taxes, she would “drop” his
                                                   “Although [Tavarez] submitted evidence
immigration case. A.R. at 132. Sanchez
                                                   and testimony that his marriage was in
admitted that she never went to the

                                               4
‘good faith,’ in light of his former wife’s          This standard reinforces “the presumption
statement, we defer to the Immigration               favoring judicial review of administrative
Judge’ [sic] finding in this case.” A.R. at          action.” Block v. Cmty. Nutrition Inst.,
3. Tavarez then filed the pending Petition           467 U.S. 340, 349 (1984).            Where
for Review.                                          congressional intent to preclude judicial
                                                     review is “fairly discernible” in the detail
                     II.
                                                     of the particular legislative scheme, this
              DISCUSSION                             presumption favoring judicial review does
                                                     not apply. Id. at 351; see also Ismailov v.
A.     8 U.S.C. § 1252(a)(2)(B)(ii)
                                                     Reno, 263 F.3d 851, 854-55 (8th Cir.
         Shortly before oral argument before         2001).
this court, the Government sent the court a
                                                            The jurisdictional         statute   in
letter, pursuant to Federal Rule of
                                                     question states:
Appellate Procedure 28(j), stating that
“[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii),                    Notwithstanding any other
this Court lacks jurisdiction to review [the                provision of law, no court
denial of the waiver], because [8 U.S.C.] §                 shall have jurisdiction to
1186a(c)(4) confers to the Attorney                         review . . . any other
General’s ‘sole discretion ’ the                            decision or action of the
determination whether petitioner presented                  A t t o r n e y G e ne ral th e
evidence of sufficient credibility and                      authority for which is
weight to satisfy that provision.” 28(j)                    s p e c i f ie d u n d e r t h is
Letter from the Government, to Office of                    subchapter to be in the
the Clerk, at 2 (Jan. 13, 2004). We must                    discretion of the Attorney
first consider this issue of jurisdiction, as               General, other than the
it “is axiomatic that this court has a special              granting of relief under
obligation to satisfy itself of its own                     section 1158(a)[, which
jurisdiction. . . .” United States v. Touby,                governs asylum,] of this
909 F.2d 759, 763 (3d Cir. 1990) (internal                  title.6
quotation and citation omitted).          We
review jurisdictional questions de novo.
See Luu-Le v. INS, 224 F.3d 911, 914 (9th               6
                                                            We address in this opinion the
Cir. 2000).
                                                     question of whether we can review
       The Supreme Court has held that               decisions under 8 U.S.C. § 1186a(c)(4)
only a showing of “clear and convincing              “regarding discretionary relief by the
evidence” is sufficient to support a finding         Attorney General and his designees,
that Congress intended to preclude judicial          which includes, inter alia, IJ, the BIA,
review of an administrative action. Bd. of           INS District Directors, and INS Regional
Governors of the Fed. Reserve Sys. v.                Commissioners.” Montero-Martinez v.
MCorp Fin., Inc., 502 U.S. 32, 44 (1991).            Ashcroft, 277 F.3d 1137, 1140 n.1 (9th

                                                 5
8 U.S.C. § 1252(a)(2)(B).                           removal orders against criminal aliens); §
                                                    1252(b)(4)(D) (limiting review of asylum
       The language “this subchapter” in
                                                    determinations for resident aliens),” Reno
the foregoing provision refers to
                                                    v. Am.-Arab Anti-Discrimination Comm.,
Subchapter II in Chapter 12 of Title 8 of
                                                    525 U.S. 471, 486-87 (1999) (discussing
the United States Code, and includes
                                                    the scope of 8 U.S.C. § 1252(g)). 7
section 1186a, the provision at issue here
that governs conditional permanent                         The     scope      of    section
resident status based on marriage to a              1252(a)(2)(B)(ii) has been the subject of
United States citizen.                              some disagreement among the courts of
                                                    appeals.    Section 1252 is captioned
           Congressional intent to preclude
                                                    “Judicial review of orders of removal.”
judicial review in situations outlined in
                                                    The courts have had to decide whether the
this provision is not merely “fairly
                                                    provision strips courts of appeals from
discernible,” it is express and manifest.
                                                    reviewing all discretionary decisions or
This jurisdiction-stripping provision is part
of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996                   7
                                                          As the Court noted, there are many
(IIRIRA). The Supreme Court has stated
                                                    jurisdiction-stripping provisions in
that “many provisions of IIRIRA are
                                                    IIRIRA, some of which appear at first
aimed at protecting the Executive’s
                                                    glance to foreclose review in similar
discretion from the courts – indeed, that
                                                    kinds of situations. Among the
can fairly be said to be the theme of the
                                                    provisions not mentioned by the Supreme
legislation.       See, e.g., 8 U.S.C. §
                                                    Court: “For example, section 1252(e)
1252(a)(2)(A) (limiting review of any
                                                    addresses limitations on judicial review
claim arising from the inspection of aliens
                                                    of exclusion orders, including habeas
arriving in the United States); §
                                                    review and collateral constitutional
1252(a)(2)(B) (barring review of denials
                                                    challenges to the validity of the system;
of discretionary relief authorized by
                                                    section 1252(f) provides limitations on
v a r i o u s sta tu to ry provisions); §
                                                    injunctive relief available in courts other
1252(a)(2)(C) (barring review of final
                                                    than the Supreme Court; and, section
                                                    1252(g) bars review of the Attorney
                                                    General’s decision to commence
Cir. 2002). Because in the instant case             proceedings, adjudicate cases, or execute
the BIA deferred to the findings of the IJ          removal orders.” CDI Info. Servs., Inc.
on the relevant “good faith” issue, we              v. Reno, 278 F.3d 616, 620 (6th Cir.
review the opinion of the IJ, Abdulai v.            2002). In this opinion, we focus our
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.            inquiry upon the scope of 8 U.S.C. §
2001), and will use “IJ” or “BIA” as a              1252(a)(2)(B)(ii) and its applicability to
shorthand for the Attorney General and              8 U.S.C. § 1186a(c)(4), and express no
his designees.                                      position about the other provisions.

                                                6
only those made in the context of removal          Tavarez was ineligible for the section
proceedings. Three courts of appeals have          1186a(c)(4)(B) waiver resulted in a final
held that section 1252(a)(2)(B)(ii) applies        order of removal.
to all discretionary decisions enumerated
                                                   B.    8 U.S.C. § 1186a(c)(4)
in the relevant subchapter of Title 8, which
includes sections 1151-1378, regardless of               Section 1186a(c)(4) states:
the context in which the decisions were
                                                         (4) Hardship waiver
made. See Samirah v. O’Connell, 335
F.3d 545, 549 (7th Cir. 2003) (revocation                The Attorney General, in the
of parole); CDI Info. Servs., 278 F.3d at                Attorney General’s
620 (denial of extension of non-immigrant                discretion, may remove the
visa); Van Dinh v. Reno, 197 F.3d 427,                   conditional basis of the
434 (10th Cir. 1999) (transfer of aliens                 permanent resident status
from one facility to another).                           for an alien who fails to
                                                         meet the requirements of
        The Court of Appeals of the Ninth
                                                         paragraph (1) if the alien
Circuit, on the other hand, disagrees. In
                                                         demonstrates that— . . . .
Spencer Enterprises, Inc. v. United States,
345 F.3d 683 (9th Cir. 2003), the court
held that § 1252(a)(2)(B)(ii) does not bar
                                                         (B) the qualifying marriage
review of the decision to issue an
                                                         was entered into in good
immigrant investor visa pursuant to §
                                                         faith by the alien spouse, but
1153(b)(5). Although the Spencer court
                                                         the qualifying marriage has
stated carefully that it “need not decide
                                                         been terminated (other than
whether § 1252(a)(2)(B)(ii) applies outside
                                                         through the death of the
the context of removal proceedings,” id. at
                                                         spouse) and the alien was
692, it concluded that because section
                                                         not at fault in failing to meet
1252(a )(2)(B )(ii) refers not to
                                                         the requirements of
“discretionary decisions” but to “acts the
                                                         paragraph (1), . . .
authority for which is specified under the
INA to be discretionary,” the provision
precludes review on ly o f those
                                                         . . . . In acting on
discretionary decisions for which there are
                                                         applications under this
no guiding legal standards. Id. at 689
                                                         paragraph, the Attorney
(emphasis in original). We need not reach
                                                         General shall consider any
that issue in this case nor do we reach the
                                                         credible evidence relevant to
issue of whether section 1252(a)(2)(B)(ii)
                                                         the application .       The
covers discretionary decisions made
                                                         determination of w hat
outside the context of removal proceedings
                                                         evidence is credible and the
because in this case, the IJ’s finding that
                                                         weight to be given that

                                               7
       evidence shall be within the                 review. Not only may the Attorney
       sole discretion of the                       General make the decision in her or his
       Attorney General.                            discretion, but the Attorney General has
                                                    the “sole discretion” to decide “what
8 U.S.C. § 1186a(c)(4) (emphases added).
                                                    evidence is credible and the weight to be
          The first paragraph of section            given that evidence.” § 1186a(c)(4). This
1186a(c) explicitly assigns to the Attorney         is particularly relevant here because the
General the discretion to “remove the               thrust of Tavarez’s argument is that “the
conditional basis of the permanent resident         Board failed to consider [his] objection to
status for an alien” who demonstrates one           the manner in which the Immigration
of the three qualifications for waivers that        Judge evaluated the evidence.” Pet. Suppl.
follow in the ensuing paragraphs. This              Br. at 3-4. The IJ explicitly balanced the
statute thus falls within even the more             considerations on the record, and because
narrow reading put forth by the Spencer             that balance in this case is dispositive and
court – that determinations in which “the           impervious to review, we set forth his
right or power to act is entirely within [the       statements in full.
A ttorney General’s] judgmen t or
                                                          After discussion of the “best
conscience . . . [and] are matters of pure
                                                    evidence for a waiver,” the testimony of
discretion, rather than discretion guided by
                                                    Sanchez and Danny Tavarez, the IJ stated:
legal standards,” are those exempted from
j u d i c ia l re vie w b y sectio n                       On the minus side of the
1252(a)(2)(B)(ii). Spencer Enters., 345                    ledger is the fact that there’s
F.3d at 690. And unlike the provision the                  virtually no documentation
Ninth Circuit exem pted from the                           at all in this case to establish
jurisdiction-stripping effect of section                   that this is a legitimate
1252(a)(2)(B)(ii), section 1186a(c) states                 marriage.        There’s one
that the Attorney General may grant such                   savings account with no
a waiver, not that the Attorney General                    activity.        There’s no
shall grant such a waiver, making clear                    checking account. There are
that the waiver may not be granted even if                 no joint leases, the property
the legal requirements of the three waiver                 that the respondent bought,
qualifications are met. Compare 8 U.S.C.                   he apparently bought in his
§ 1186a(c), with 8 U.S.C. § 1153(b)(5).                    own name, so his wife’s not
Section 1252(a)(2)(B)(ii) clearly precludes                on that deed. There are no
judicial review of decisions under section                 affidav its from anyone
1186a(c)(4).                                               familiar with the respondent
                                                           or his wife. There’s no
      Section 1186a(c)(4) provides the
                                                           evidence of co-mingling of
Attorney General’s discretionary decision
                                                           assets. There are a few tax
with another layer of protection from
                                                           returns, which do suggest

                                                8
      some evidence of life                         a r e s o m e t i m e s m ix e d
      together as husband and                       motives behind marriages.
      wife, but for the most part,                  There are different feelings.
      cons idering that these                       Apparently, there was a
      people were married from                      f e e l in g o f a f f e c t io n ,
      1992 until only about a year                  friendship and concern for
      ago, a period of about eight                  him but it appears also that
      years, there’s nothing here                   she would not have married
      to speak of and it’s                          him but for the fact that he
      remarkable that there is so                   needed a green card and she
      little in this file to show that              does not allege in here or
      these two people lived                        admit or concede that she
      together.                                     ever received any money for
                                                    marrying him. Apparently
A.R. at 40. The IJ continued:
                                                    the Service never pressed
              The Court believe                     her to make such a
      [sic] that the respondent’s                   statement because she
      then-wife, Eladia, probably                   doesn’t make one. So it
      was around the house,                         appears that there was some
      probably was in the house at                  sort of relationship, some
      some point. She may have                      sort of friendship but it also
      even lived there. The Court                   appears that it wasn’t really
      questions however, whether                    a marriage. At least not
      or not she was ever what                      what we would consider to
      one would call a wife, what                   be a marriage.
      one would think of as a
                                             A.R. at 41.
      partner. The Court also
      believes that her statement,                   It follows that whether we agree
      which is part of Exhibit 3, is         with the IJ’s characterization of the
      probably true in the sense             underlying evidence as credible vel non
      that it says that she married          which led him to conclude that this was
      him so that he could obtain            not a good faith marriage, A.R. at 40, is
      his permanent residence and            irrelevant, as the statute itself gives the
      she wishes to withdraw her             Attorney General (acting through his
      application but she also               designee) the sole discretion to weigh the
      hopes that no harm comes to            evidence. Courts have been zealous in
      him and that he’s allowed to           their efforts to pressure our jurisdiction to
      stay in the country. That’s            review administrative decisions, but that
      not an unreasonable position           effort must fail under the overarching
      for a person to have. There            reality that it is Congress that has the

                                         9
power to decide the jurisdiction of the                Foti v. INS, 375 U.S. 217, 229 (1963), and
inferior federal courts. And IIRIRA makes              ‘all matters on which the validity of the
plain our inability to review precisely the            final order is contingent,’ INS v. Chadha,
issue presented here, that is, the relative            462 U.S. 919, 938 (1983) (internal
weight of the evidence.                                quotations omitted).” Nyonzele, 83 F.3d
                                                       at 979.          In contrast, sectio n
        Tavarez argues that “[a] strikingly
                                                       1252(a)(2)(B)(ii) explicitly disallows
similar issue of reviewability was
                                                       review of discretionary decisions in the
addressed in the case of Nyonzele v. INS,
                                                       context of removal proceedings. The
83 F.3d 975 [(8th Cir. 1996)].” Pet. Suppl.
                                                       jurisdictional holding of Nyonzele is no
Br. at 2. The Nyonzele court noted that
                                                       longer consistent with the passage of
the hardship waiver at issue there “was
                                                       IIRIRA.
initially denied by the district director,”
and that the “district director’s denial of a                             III.
hardship waiver is not itself appealable.”
                                                                   CONCLUSION
Id. at 979. It continued, “Because the BIA
reviewed the waiver claim during the                          We hold that 8 U.S.C. §
deportation proceedings, that decision is              1252(a)(2)(B)(ii) bars us from reviewing
reviewable in this court.” Id. It also noted           the discretionary denial of waivers under 8
that because “[e]ach of [the requests for              U.S.C. § 1186a(c)(4).        The statutory
relief at issue] is a matter statutorily vested        provisions that the Attorney General “in
in the discretion of the Attorney General,”            [his] discretion, may” remove the
its review was “limited to determining                 condition on permanent residence without
whether there has been an abuse of                     a joint application, and that the Attorney
discretion.” Id. Petitioner thus urges us to           General has the “sole discretion” to weigh
hear the merits of this appeal under an                the evidence and decide which evidence is
abuse of discretion standard.                          credible, compel our conclusion. 8 U.S.C.
                                                       § 1186a(c)(4) (emphasis added). We will
        But Nyonzele was decided before
                                                       therefore deny the petition for review.
the enactment of IIRIRA. When Nyonzele
was decided, the relevant jurisdictional
statute was 8 U.S.C. § 1105a (1994),
which gave the courts of appeals
jurisdiction to review all final orders of
deportation. Jurisdiction then was more
broad, and as the Eighth Circuit noted, its
“review of final orders of deportation
pursuant to 8 U.S.C. § 1105a(a) include[d]
‘all determinations made during and
incident to the administrative proceeding .
. . and reviewable together by the [BIA],’

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