                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                    10-1802
                                _______________

                              ALLA BARENBOY,

                                      Appellant

                                        v.

     SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY;
      DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION SERVICES;
     KAREN FITZGERALD, Director, USCIS Philadelphia District Office;
EVANGELIA KLAPAKIS, Director, USCIS Philadelphia Field Office, in their official
                              capacities

                        (Pursuant to Fed. R. App. P. 43(c)(1))

                                _______________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                        (D.C. Civil No. 2-09-cv-03082)
                     District Judge: Hon. Louis H. Pollak
                               _______________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                               November 9, 2010

    BEFORE: MCKEE, Chief Judge, SLOVITER and COWEN , Circuit Judges

                           (Filed December 29, 2010)
                                    _______________

                                       OPINION
                                    _______________

COWEN, Circuit Judge.

       In this immigration-related matter, Plaintiff Alla Barenboy appeals from the order

of the United States District Court for the Eastern District of Pennsylvania dismissing her

complaint on jurisdictional grounds. We will affirm.

                                             I.

       This matter arises out of the denials by United States Citizenship and Immigration

Services (―USCIS‖) of two separate Form I-130 Petitions for Alien Relative filed by

Barenboy (an American citizen) on behalf of her spouse, Armen Danielyan (a native and

citizen of Armenia who is currently the subject of a removal proceeding).

       In 1999, Danielyan, a musician, traveled to the United States on a P-1 visa in order

to perform at Carnegie Hall in New York City. In connection with this visit, an

administrator from the Armenian Philharmonic Orchestra (Danielyan‘s employer)

allegedly completed the requisite United States Department of State Form OF-156

Nonimmigrant Visa Application on his behalf. The Form OF-156 Application stated that

Danielyan was married to Gayane Asatryan, an Armenian citizen. In 2001, Danielyan

personally filed another Form OF-156 Application at the American Embassy in Armenia.

―[A]n [embassy] employee helped him fill out the application by using the information

stored in the system from his prior P-1 visa application,‖ which he had ―forgotten‖ stated

that he was married to Asatryan. (Appellant‘s Brief at 5 (citing A35).) Danielyan then
                                             2
purportedly signed the document ―without noticing that it stated he was married.‖ (Id.

(citing same).)

       Danielyan, in a sworn statement, acknowledged that he lived with Asatryan in

Armenia from 1993 until they broke up in 1995. They had two daughters, born in 1994

and 1995. However, he insisted that they were never married.

       Admitted in April 2001 as a non-immigrant visitor for business, Danielyan did not

leave the country when his B-1/B-2 visa expired in May 2001. He also began a

relationship with Barenboy. The two individuals eventually moved in together in January

2004. Barenboy was still legally married to another man, but she and Danielyan

purportedly intended to get married once her divorce was finalized.

       Danielyan was eventually apprehended by United States Immigration and Customs

Enforcement (―ICE‖) agents on May 11, 2004. With the telephonic assistance of a

Russian-language interpreter (a language that Danielyan could apparently speak ―fairly

well‖ although ―his first and better language is Armenian‖), Danielyan was questioned by

the agents. (Id. at 7 (citing A21, A37).) He claimed in his written statement that:

       . . . . The translator asked me at one point why I was not married to Alla. I
       tried to explain to the translator that I was waiting for the divorce to go
       through. What I actually said was ―Zhdu Razvod,‖ which translates into ―I
       wait divorce.‖ It was a very rough way of saying that I was waiting for
       Alla‘s divorce to come through. I was so nervous from being handcuffed
       and taken into custody that that was all the Russian I could muster to
       explain things.
       . . . . It has become clear to me, from later events, that the translator and the
       agents misinterpreted my statement. When I said ―Zhdu Razvod‖ – ―I wait
       for divorce‖, I was referring to Alla‘s pending divorce proceedings, and the
       fact that our ability to marry hinged on her divorce coming through. But the
       agents thought I meant that I was still married, and that I needed a divorce
                                              3
       in order to marry Alla. The agents did not even consider the fact that Alla
       was the one who had an actual divorce case pending, a fact they could have
       easily looked up. There was no need for me to get a divorce – I had never
       been married!

(A37.) According to a declaration submitted by the USCIS Field Office Director,

―Danielyan [thereby] informed ICE that he was married to Gayane Asatryan – who

remained in Armenia – but that he intended to marry Alla Barenboy once divorced from

Gayane Asatryan.‖ (A30.) The Field Office Director also stated that Barenboy was

present during the questioning and assisted with the translations.

       Danielyan was then served with a Notice to Appear, charging that he was

removable because he remained in the United States beyond the authorized period.

Barenboy‘s divorce was finalized on August 23, 2004, and Barenboy and Danielyan were

then married in Maryland on August 26, 2004.

       Barenboy filed a Form I-130 Petition, requesting a bona fide marriage exemption

pursuant to 8 U.S.C. § 1255(e)(3). When he was interviewed under oath at the

Philadelphia District Office, Danielyan attempted to explain that he had never been

married to Asatryan. USCIS issued a Notice of Intent to Deny for failure to show the

termination of Danielyan‘s previous marriage to Asatryan. In addition to a statement

from Danielyan explaining that he had never been married to Asatryan and denying that

he ever told the ICE agents that he was, Barenboy submitted the following documentation

(including both the purported originals as well as English translations): (1) a statement

purportedly from Asatryan herself, asserting that she had two children with Danielyan but

that she had never been married to him; (2) a certificate allegedly from the Armenian
                                             4
Territorial Department of Civil Status Registry Office of Ajapnyak and Davtashen,

indicating that there was no record of any registered marriage for Danielyan in the time

period between October 12, 1990 and February 23, 2005; and (3) a statement purportedly

from the Araratyan Patriarchal Diocese of the Armenian Apostolic Church, likewise

asserting that Danielyan had never been married according to the rites of the Church.

       On October 28, 2006, the USCIS District Director denied the first Form I-130

Petition, finding that Barenboy failed to prove ―the dissolution of all previous marriages

of both you and your current spouse‖ pursuant to 8 C.F.R. § 204.2(a)(2). (A261.)

Barenboy responded by filing an administrative appeal as well as a second Form I-130

Petition.

       After further interviews and an overseas investigation, the Field Office Director

denied the second Form I-130 Petition on July 11, 2008. She determined, inter alia, that

Barenboy‘s marriage ―is a bigamist marriage and is not bona fide for the purpose of

conveying an immigration benefit to Mr. Danielyan.‖ (A115.) Explaining that Danielyan

did not enter into a good faith marriage in accordance with the laws of the place where

the marriage took place because he knew he was not free to marry, the Field Office

Director concluded her rather lengthy decision as follows:

       . . . . The instant case taken in its entirety shows that your marriage took
       place after the beneficiary had been placed in proceedings, the beneficiary
       claimed he was never married prior to your marriage and therefore did not
       need a divorce, and that when USCIS required a divorce document, the
       beneficiary knowingly and willfully provided documents and sworn
       testimony to further his claim that his marriage to you was indeed bona fide,
       shows clearly and unmistakably that the beneficiary‘s marriage to you was
       not in good faith.
                                             5
(Id.) Barenboy appealed from this rejection of her second Form I-130 Petition.

       On March 23, 2009, the Board of Immigration Appeals (―BIA‖) dismissed both

administrative appeals. The BIA agreed with the previous determinations of USCIS,

―based on the beneficiary‘s sworn testimony to ICE officers, his two applications for a

nonimmigrant visa (Form OF-156) indicating that the beneficiary was married to Gayane

Asatryan, and the petitioner‘s failure to submit any evidence that the beneficiary‘s prior

marriage has been terminated.‖ (A42-A43.) According to the BIA, Barenboy failed to

establish that the beneficiary was free to marry her, and their marriage therefore was not

bona fide for the purpose of conferring an immigration benefit.

       Barenboy filed a complaint with the District Court on July 10, 2009. Naming

several government officials as Defendants, she sought judicial review of the various

administrative determinations made regarding her Form I-130 Petitions pursuant to the

Administrative Procedure Act. On March 1, 2010, the District Court granted Defendants‘

motion to dismiss, explaining, inter alia, that it lacked subject matter jurisdiction pursuant

to 8 U.S.C. § 1252(a)(2)(B)(i).

                                              II.

       An alien who marries a United States citizen while in removal proceedings is

subject to a statutory presumption that the marriage itself is fraudulent. See, e.g., 8

U.S.C. § 1154(g); 8 U.S.C. § 1255(e). Unless this presumption is rebutted, a Form I-130

Petition filed on the alien‘s behalf may not be approved until the alien has resided outside

the United States for a two-year period from the date of the marriage. See, e.g., 8 U.S.C.
                                              6
§ 1154(g); 8 U.S.C. § 1255(e). The presumption of fraud is successfully rebutted

pursuant to the bona fide marriage exemption ―if the alien establishes by clear and

convincing evidence to the satisfaction of the Attorney General that the marriage was

entered into in good faith and in accordance with the laws of the place where the marriage

took place and the marriage was not entered into for the purpose of procuring the alien‘s

admission as an immigrant and no fee or other consideration was given (other than a fee

or other consideration to an attorney for assistance in preparation of a lawful petition).‖ 8

U.S.C. § 1255(e)(3). In this matter, both USCIS and the BIA held that Barenboy failed to

rebut this otherwise applicable fraud presumption.

       For its part, the District Court determined that ―Section 1255(e)(3) falls squarely

within the jurisdictional bar provided in [8 U.S.C. § 1252(a)(2)(B)(i)].‖ (A8.) This

subsection provides that ―no court shall have jurisdiction to review—(i) any judgment

regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of

this title.‖ Defendants, however, acknowledge that subsection (i) actually governs

adjustment of status applications, and they turn instead to 8 U.S.C. § 1252(a)(2)(B)(ii).1

See, e.g., Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 2010) (stating that order of


1
  Noting that ―Barenboy characterizes the question [at issue in this case] as one of law—
i.e., whether the USCIS decision involved a mis-application of 8 U.S.C. § 1255(e)(3),‖
the District Court indicated that such a legal question should be considered by this Court
pursuant to 8 U.S.C. § 1252(a)(2)(D). (A8 n.3.) Nevertheless, we need not (and
therefore do not) consider the possible effects of this statutory subsection because this
appeal may be resolved on other grounds. Defendants observe that they have never
argued that § 1252(a)(2)(D) is applicable in the current circumstances, and they also
properly note that the amicus curiae brief filed by the American Immigration Council
addresses only the limited question of this particular subsection‘s applicability.
                                              7
district court may be affirmed on any grounds supported by record). Subsection (ii) states

that no court shall have jurisdiction to review ―any other decision or action of the

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

specified under this subchapter to be in the discretion of the Attorney General or the

Secretary of Homeland Security, other than the granting of relief under section 1158(a) of

this title.‖

        Barenboy raises a number of arguments for why the District Court still retained

subject matter jurisdiction over her complaint despite the language of § 1252(a)(2)(B)(ii).

For instance, she contends that her current judicial action raises purely legal questions,

such as whether Danielyan possessed the legal capacity to marry her. More broadly,

Barenboy contends that the determination to grant or deny a bona fide marriage

exemption constitutes a non-discretionary decision for purposes of the jurisdictional bar.

Having fully considered her various assertions, we nevertheless conclude that the District

Court lacked subject matter jurisdiction over this action. Here, both USCIS and the BIA

determined that Barenboy failed to prove ―by clear and convincing evidence to the

satisfaction of the Attorney General‖ that her marriage to Danielyan ―was entered into in

good faith and in accordance with the laws of the place where the marriage took place

and the marriage was not entered into for the purpose of procuring the alien‘s admission

as an immigrant.‖ 8 U.S.C. § 1255(e)(3) (emphasis added). Pursuant to §

1252(a)(2)(B)(ii), the District Court lacked jurisdiction to review such discretionary

determinations. Cf., e.g., Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006)


                                              8
(―This language [in 8 U.S.C. § 1158(a)(2)(D)] requiring an asylum applicant to make a

demonstration to the Attorney General‘s ‗satisfaction‘ implies that the Attorney General‘s

determination entails an exercise of discretion.‖ (citation omitted)).

       Even if we were inclined to conclude that the District Court had jurisdiction, it is

clear that Barenboy‘s complaint must still be dismissed for failure to state a claim upon

which relief can be granted. She asserts that the administrative denials of her Form I-130

Petitions were ―arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,‖ 5 U.S.C. § 706(2)(A), were made ―without observance of

procedure required by law,‖ 5 U.S.C. § 706(2)(D), and were otherwise ―unsupported by

substantial evidence,‖ 5 U.S.C. § 706(2)(E). Nevertheless, USCIS and the BIA complied

with their legal obligations and their respective determinations regarding the Form I-130

Petitions were supported by substantial evidence. In particular, we note that the record

contains two Form OF-156 Applications filed on behalf of Danielyan and that both of

these documents clearly stated that he was married to Asatryan. USCIS, in turn, has

consistently (and reasonably) maintained that Danielyan told the ICE agents after his

apprehension that he was still married to Asatryan and that he intended to marry

Barenboy after he divorced her.

                                             III.

       For the foregoing reasons, we will affirm the order of the District Court.




                                              9
