                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 10-1856
                                        ___________

                                      DELROY LINDO,
                                               Petitioner

                                               v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                                          Respondent
                     ____________________________________

                         On Petition for Review of an Order of the
                              Board of Immigration Appeals
                               (Agency No. A056-034-195)
                      Immigration Judge: Honorable Eugene Pugliese
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      April 1, 2011

               Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

                                     (Filed: April 6, 2011)
                                         ___________

                                 OPINION OF THE COURT
                                      ___________

PER CURIAM.

       Delroy Lindo petitions for review of a final order of the Board of Immigration

Appeals (BIA) affirming the decision of the Immigration Judge (IJ). We will dismiss the

petition for lack of jurisdiction.
       Lindo is a citizen of Jamaica. In 2001, he married Lurline Brown, a United States

citizen. Based on his marriage, Lindo entered the United States in 2002 as a conditional

permanent resident under section 216(a)(1) of the Immigration and Nationality Act

(INA), 8 U.S.C. § 1186a(a)(1). The conditional basis of an alien‟s permanent-resident

status may be removed if the alien and the United States spouse jointly submit a petition

to the Attorney General. See INA § 216(c)(1). Here, before Lindo and Brown filed such

a petition, they divorced. Lindo then filed an application for a hardship waiver under

section 216(c)(4). Under this section, if the alien shows, for instance, that “the qualifying

marriage was entered into in good faith” (as Lindo claimed here), the Attorney General

has the discretion to remove the alien‟s conditional status. INA § 216(c)(4)(B).

       The United States Citizenship and Immigration Services denied Lindo‟s

application, and the Department of Homeland Security commenced removal proceedings,

charging Lindo as removable under section 237(a)(1)(D)(i) as an alien whose

conditional-permanent-resident status had been terminated. Before an IJ, Lindo reiterated

his argument that he was entitled to a hardship waiver under section 216(c)(4) and was

thus not removable. See INA § 237(a)(1)(D)(ii) (providing a defense to removability for

aliens who obtain a hardship waiver). The IJ rejected this argument, and Lindo appealed

to the BIA, reasserting the defense. The BIA likewise ruled against Lindo, concluding

that he had “failed to present any significant documentation to corroborate his testimony

that his marriage was bona fide.” Lindo then filed a petition for review in this Court. He




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raises a single claim: that the BIA erred in concluding that he did not enter into his

marriage in good faith.

       The government contends that we lack jurisdiction to review Lindo‟s petition

because the BIA‟s decision represents a discretionary action subject to the jurisdiction-

stripping provisions of the INA. See INA § 242(a)(2)(B)(ii). As the government points

out, we have addressed this precise issue in Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d

Cir. 2004). In Urena-Tavarez, an alien appealed an order in which the BIA denied a

hardship waiver due to its conclusion that the alien had not entered into his marriage in

good faith. Id. at 157. We noted that section 242(a)(2)(B)(ii) provides that any “decision

or action of the Attorney General . . .[,] the authority for which is specified under this title

to be in the discretion of the Attorney General,” is not subject to judicial review. Id. at

158 (internal quotation marks omitted). We then concluded that the BIA‟s decision to

reject a hardship waiver under section 216(c)(4) involved two levels of discretion: first,

the statute states that even if the alien shows that he is eligible for a hardship waiver, the

Attorney General has discretion as to whether to grant a waiver, and second, the statute

provides that “the Attorney General has the sole discretion to decide what evidence is

credible and the weight to be given that evidence.” Id. at 159-60 (internal quotation

marks omitted). We thus held that section 242(a)(2)(B)(ii) barred our review of the

alien‟s claim. Id. at 161.

       Lindo argues that Urena-Tavarez has been effectively superseded by the REAL ID

Act of 2005. Through that Act, Congress amended section 242(a)(2) to include the

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following provision: “[n]othing in subparagraph (B) or (C) . . . which limits or eliminates

judicial review, shall be construed as precluding review of constitutional claims or

questions of law.” INA § 242(a)(2)(D). Lindo claims that he raises a legal challenge to

the BIA‟s ruling on the good-faith nature of his marriage, and is thus entitled to review

by this Court notwithstanding section 242(a)(2)(B).

       Contrary to Lindo‟s argument, Urena-Tavarez remains controlling and is

dispositive here. In that case, we determined that we lacked jurisdiction because the

BIA‟s decision denying the hardship waiver was a matter of its discretion, and section

242(a)(2)(B) prohibited us from reviewing the agency‟s discretionary decisions. Even

after the REAL ID Act, “factual or discretionary determinations continue to fall outside

the jurisdiction of the court of appeals entertaining a petition for review.” Sukwanputra

v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). Thus, the amendment to section 242(a)(2)

does not affect our holding in Urena-Tavarez.

       While Lindo attempts to frame his argument as one of law, at bottom he is merely

arguing that “the evidence he submitted [shows] that his marriage was entered in „good

faith.‟” As we have explained, “arguments such as that an Immigration Judge or the BIA

incorrectly weighed evidence, failed to consider evidence or improperly weighed

equitable factors are not questions of law under § [242](a)(2)(D).” Jarbough v. Att‟y

Gen., 483 F.3d 184, 189 (3d Cir. 2007); see also Contreras-Salinas v. Holder, 585 F.3d

710, 715 (2d Cir. 2009) (holding that “regardless of how petitioner characterizes her

claim” the BIA wrongly ruled that she had not entered into her marriage in good faith, the

                                             4
Court lacked jurisdiction because “she is essentially challenging the agency‟s credibility

determinations and the relative weight it accorded to evidence”).

       Here, the BIA balanced the relevant evidence and concluded that Lindo had failed

to show that he had entered into his marriage in good faith. That decision “is dispositive

and impervious to review.” Urena-Tavarez, 367 F.3d at 160. Accordingly, we will

dismiss Lindo‟s petition for review for lack of jurisdiction.




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