                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ARNOLD GOMEZ,                                    No. 05-74778

             Petitioner,                         Agency No. A044-945-797

  v.

ERIC H. HOLDER Jr., Attorney General,            MEMORANDUM *

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                           Submitted February 12, 2010 **
                             San Francisco, California

Before: GOODWIN, BERZON and IKUTA, Circuit Judges.




       Although the INS erroneously referenced INA § 216(b), 8 U.S.C.

§ 1186a(b), instead of INA § 216(c), 8 U.S.C. § 1186a(c), in denying Gomez’s

application for a waiver from the requirement that his spouse submit a joint

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition, the IJ did not err in construing the INS’s denial as a determination under 8

U.S.C. § 1186a(c)(4)(B). Gomez filed his application under 8 U.S.C.

§ 1186a(c)(4)(B), and the INS analyzed the waiver under that section (concluding

that the marriage was not entered into in good faith, as required to be eligible for

the waiver). Moreover, 8 U.S.C. § 1186a(b) was inapplicable by its terms, because

the Attorney General did not terminate Gomez’s permanent resident status before

the second anniversary of Gomez’s obtaining such status.

      The IJ did not err in holding that Gomez’s conditional residency status had

been terminated. See 8 U.S.C. § 1186a(c)(2). Gomez’s conditional residency

status had already terminated for failure to file jointly for removal of the condition

within the applicable two-year time period. Moreover, Gomez conceded

removability at his hearing and stated the proceedings were to review removal of

the condition.

      Substantial evidence supports the IJ’s denial of Gomez’s application for

waiver on the basis that his marriage was not entered into in good faith. See

Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). The IJ identified

numerous contradictions in the testimony, including whether the marriage had been

consummated, the existence of shared expenses and living arrangements, and how

Gomez and his wife met.
      Finally, the IJ did not apply the wrong legal standard in making the good

faith determination. A couple’s actions after marriage may “bear on the subjective

intent of the parties at the time they were married.” Oropeza-Wong v. Gonzales,

406 F.3d 1135, 1148 (9th Cir. 2005).

      PETITION DENIED.
