              Case: 16-15406   Date Filed: 07/24/2017   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-15406
                            Non-Argument Calendar
                          ________________________

                           Agency No. A087-249-264

MICHELLE POWELL,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                          ________________________

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

                                 (July 24, 2017)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Michelle Powell, who had been conditionally granted lawful permanent

resident status through her former marriage, appeals the denial of her application

for a waiver of the requirements for removing the conditional basis of her lawful
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permanent residence status.       The Immigration Judge (“IJ”) and Board of

Immigration Appeals (“BIA”) had denied her application based on a finding that

Powell failed to meet her burden of establishing that she entered into the marriage

in good faith. After careful review, we dismiss the petition.

      We review de novo our own subject matter jurisdiction. Fynn v. U.S. Att’y

Gen., 752 F.3d 1250, 1252 (11th Cir. 2014). We review only the decision of the

BIA, except to the extent the BIA expressly adopted or explicitly agrees with the

opinion of the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010).

      Under the discretionary-decision bar of the Immigration and Nationality Act

(“INA”), we lack jurisdiction to review a “decision or action of the Attorney

General or the Secretary of Homeland Security the authority for which is specified

under [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General or

the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii); see also Zafar

v. U.S. Att’y Gen., 461 F.3d 1357, 1361 (11th Cir. 2006).                Despite this

jurisdictional bar, we retain jurisdiction over legal and constitutional claims raised

in a petition for review. 8 U.S.C. § 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen.,

610 F.3d 1311, 1314 n.4 (11th Cir. 2010). An argument that the IJ or BIA abused

its discretion by failing to properly weigh evidence or the facts as presented is a

“garden-variety abuse of discretion argument” that is insufficient to state a legal or

constitutional claim. Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196-97


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(11th Cir. 2008). In contrast, the “application of an undisputed fact pattern to a

legal standard” is a legal question subject to our review. Bedoya-Melendez v. U.S.

Att’y Gen., 680 F.3d 1321, 1324 (11th Cir. 2012) (quotation omitted).

      According to the INA, an alien who obtains conditional lawful permanent

resident status based on a qualifying marriage must timely file a joint petition with

her spouse to remove the conditional basis of her status, and if she does not do so,

her status will be terminated. 8 U.S.C. § 1186a(c)(1)-(3). The joint petition must

show that the marriage was lawful, has not been annulled or terminated, and was

not entered into for immigration purposes. 8 U.S.C. § 1186a(d)(1)(A). If an alien

does not file a joint petition or make the required showing, the Secretary of

Homeland Security may, in his discretion, grant a waiver, and nevertheless remove

the conditional basis of the alien’s resident status, if the alien demonstrates that

“the qualifying marriage was entered into in good faith by the alien [ ], but the

qualifying marriage has been terminated” and the failure to meet the requirements

was not the alien’s fault. 8 U.S.C. § 1186a(c)(4)(B). The statute further provides

that “[t]he determination of what evidence is credible and the weight to be given

that evidence shall be within the sole discretion of the Secretary of Homeland

Security.” 8 U.S.C. § 1186a(c)(4).

      In Fynn, we held that we lacked jurisdiction to review an alien’s challenges

to the weight accorded to evidence or credibility determinations made in deciding


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whether an alien entered into her marriage in good faith. 752 F.3d at 1253. We

noted that Fynn’s reply brief sought to frame his challenge as a legal claim that the

IJ failed to consider certain probative testimony, but that his initial brief made clear

that he was challenging the agency’s adverse credibility determination and the

weight assigned to the evidence.        Id.    Specifically, Fynn sought to explain

inconsistencies in certain testimony and challenge the weight given to certain

inconsistencies. Id. We held that challenges to the good faith determination that

focused on the weight of the evidence were barred. Id. at 1252-53.

      Here, we lack jurisdiction under the INA and Fynn to review Powell’s

petition. See Fynn, 752 F.3d at 1252. To the extent Powell argues that substantial

evidence does not support the finding that her marriage was not entered into in

good faith, she is challenging the weight accorded to the evidence, which we

cannot review. See id. Moreover, while Powell argues that the BIA legally erred

by applying the wrong standard of proof, she acknowledges that the BIA cited the

correct standard; as a result, Powell essentially is arguing that the BIA erred by

finding that her evidence was insufficiently compelling, in light of the evidence as

a whole, to meet the standard. Thus, she is raising a garden-variety abuse-of-

discretion argument, not a legal issue. See Alvarez Acosta, 524 F.3d at 1196-97.

      Finally, Powell’s reliance on Lara v. Lynch, 789 F.3d 800 (7th Cir. 2015), is

misplaced. Not only is Lara, a Seventh Circuit case, not binding on this Court, but


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it is inapposite anyway. Lara concerned an argument that the BIA erred as a

matter of law by accepting as credible the petitioner’s unrebutted testimony, but

nevertheless failing to draw the necessary and inescapable conclusion that the

preponderance standard was met. See Lara, 789 F.3d at 804-05. The argument in

Lara, therefore, was about the “application of an undisputed fact pattern to a legal

standard,” which is a question of law. See id.; Bedoya-Melendez, 680 F.3d at

1324. Here, by contrast, the evidence is not undisputed, and Powell is not raising a

legal issue, but instead challenging the weighing of the evidence. Accordingly, we

lack jurisdiction to review her claims, and dismiss the petition for review.

      PETITION DISMISSED.




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