                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 19, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-60323


     JIGNESHKUMAR NATVARLA PATEL

                Petitioner

          v.

     JOHN ASHCROFT, U S ATTORNEY GENERAL

                Respondent


               Petitions for Review of Orders of the
                    Board of Immigration Appeals
                           No. A45 788 587


Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.

PER CURIAM:*

     Jingeshkumar Patel petitions for review of the Board of

Immigration Appeals’s (BIA’s) order affirming the Immigration

Judge’s (IJ’s) determination that he is a removable alien and for

review of the BIA’s denial of his motion to reopen.     For the

following reasons, we DISMISS the petitions for review.

                             I. BACKGROUND

     Patel, a citizen of India, entered the United States as a


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

                                   1
conditional permanent resident on February 18, 1997.    Patel’s

conditional resident status was based on his April 28, 1996

arranged marriage to Sonal K. Patel (Sonal),1 a U.S. citizen.

See 8 U.S.C. § 1186a(a)(1) (2000).   Patel claims that he and his

wife were unable to reconcile their cultural differences

regarding their marriage and thus, on January 4, 1998, less than

a year after he joined his wife in the United States, the couple

divorced.

     On November 17, 1998, Patel filed a petition to remove the

condition on his permanent resident status.    Although he was no

longer married to Sonal, he requested a waiver based on his

assertion that he entered into the marriage in good faith.     See

id. § 1186a(c)(4)(B).   The Immigration and Naturalization Service

(INS) denied Patel’s waiver application, terminated his

conditional resident status, and initiated removal proceedings by

serving him with a Notice to Appear on July 24, 1999.    In the

notice, the INS charged Patel as removable under 8 U.S.C.

§ 1227(a)(1)(D)(i), as an alien whose conditional status has been

terminated, and under 8 U.S.C. § 1227(a)(1)(G) (2000), as an

alien who procured a visa by marriage fraud.

     Before the IJ, Patel conceded that he entered the country as

a conditional resident by virtue of his marriage to Sonal and

     1
          The government identifies Patel’s wife as Sonal
Kantibhai; however, because she is listed as either Sonal Patel
or Sonelle Patel throughout the administrative record, we refer
to her as Sonal Patel.

                                 2
that this marriage had been judicially terminated.   After

reviewing the evidence in the record, the IJ concluded that Patel

had failed to carry his burden of proving that he entered his

marriage in good faith, either to obtain a good-faith marriage

waiver or to disprove the INS’s allegation that he obtained his

visa by marriage fraud.   Accordingly, the IJ held that Patel was

removable under §§ 1227(a)(1)(D)(i) and 1227(a)(1)(G) and granted

Patel a 60-day period of voluntary departure.

     Patel appealed this decision to the BIA, claiming that the

IJ erred by not requiring the INS to prove, by clear and

convincing evidence, that Patel married Sonal with the sole

purpose of evading the immigration laws.   Patel further argued

that he had shown, by a preponderance of the evidence, that he

married Sonal in good faith.   On March 20, 2003, the BIA

summarily affirmed the IJ’s decision and ordered that Patel

voluntarily depart the United States within thirty days.     Patel

petitioned this court for review of the BIA’s decision.

     Patel also filed a motion to reopen and to reconsider with

the BIA, claiming that his counsel had been ineffective during

the IJ hearing and requesting an extension of his voluntary

departure during the pendency of the motion.    Without addressing

Patel’s request for an extension of his voluntary departure, the

BIA denied Patel’s motion to reopen after concluding that Patel

had not demonstrated that his counsel’s conduct had been so

egregious as to render the proceedings unfair.   Patel

                                 3
subsequently petitioned this court for review of the BIA’s

decision denying his motion to reopen, and the case was

consolidated with his petition for review of the BIA’s decision

in his direct appeal.

                           II. DISCUSSION

A.   BIA’s Final Order of Removal

     In his petition for review of the BIA’s March 20, 2003

order, Patel first argues that his removal proceedings were

rendered fundamentally unfair because the IJ did not require the

government to establish his removability by clear and convincing

evidence before placing the burden on Patel to demonstrate his

eligibility for a waiver of that removability.      We review

questions of law, including the application of burdens of proof,

de novo.   See Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997).

Although generally “[w]e have authority to review only an order

of the BIA, not the IJ,” id at 302, when, as here, the BIA

summarily affirms an IJ’s decision, the latter decision forms the

basis of this court’s review, see Moin v. Ashcroft, 335 F.3d 415,

418 (5th Cir. 2003).    “[T]his Court must affirm the decision if

there is no error of law and if reasonable, substantial, and

probative evidence on the record, considered as a whole, supports

the decision’s factual findings.”     Id. at 418.



     Although not raised by the parties, we must, as an initial



                                  4
matter, determine whether we have jurisdiction to review the

BIA’s order of removability.     See Ojeda-Terrazas v. Ashcroft, 290

F.3d 292, 294 & n.4 (5th Cir. 2002); Goonsuwan v. Ashcroft, 252

F.3d 383, 385 (5th Cir. 2001).    In general, this court may review

final orders of removal under 8 U.S.C. § 1252(a)(1) (2000);

however, § 1252(a)(2)(B)(ii)2 bars us from asserting jurisdiction

over “any . . . decision or action of the Attorney General the

authority for which is specified under this subchapter to be in

the discretion of the Attorney General.”      In its order, the BIA

affirmed the IJ’s decision that Patel was deportable both under

§ 1227(a)(1)(D)(i), for termination of his conditional resident

status, and under § 1227(a)(1)(G), for marriage fraud.         Before

the IJ, Patel asserted that he should have been granted a waiver

of his removability under § 1227(a)(1)(D)(i) because he entered

into his marriage in good faith.       See § 1186a(c)(4)(B).    The

decision whether to grant this waiver is, however, committed by

statute solely to the discretion of the Attorney General.         See

Assaad, No. 03-60201, manuscript at 6-7 (citing Urena-Tavarez v.

Ashcroft, 367 F.3d 154, 160 (3d Cir. 2004)).      Therefore, the

jurisdictional bar in § 1252(a)(2)(B)(ii), by its terms, bars

     2
          Section 1252(a)(2)(B)(ii) is part of the permanent
jurisdictional rules enacted by Congress in § 306(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), see Pub. L. No. 104-208, 110 Stat. 3009-546, -607
to -612. These rules apply to Patel’s petitions for review
because the INS initiated his removal proceedings after April 1,
1997. See Assaad v. Ashcroft, No. 03-60201, manuscript at 4 n.1
(5th Cir. July 19, 2004).

                                   5
federal court review of the BIA’s final order of removability.3

     Our determination that § 1252(a)(2)(B)(ii) applies to the

BIA’s March 20, 2003 order does not conclusively resolve the

question of our jurisdiction, however.   Notwithstanding this

provision, we may review the BIA’s decision if Patel’s petition

presents a “substantial constitutional claim[].”    See Balogun v.

Ashcroft, 270 F.3d 274, 278 n.11 (5th Cir. 2001).   In arguing

that the IJ’s allocation of the burden of proof rendered his

proceedings fundamentally unfair, Patel essentially argues that

his claim arises under the Due Process Clause of the Fifth

Amendment.   See Animashaun v. INS, 990 F.2d 234, 238 (5th Cir.

1993) (“[T]he IJ must conduct deportation hearings in accord with

due process standards of fundamental fairness.”).

     Patel is correct that the government generally bears “the


     3
          We note that the Ninth Circuit has recently held that
§ 1252(a)(2)(B)(ii) does not bar federal court jurisdiction over
an alien’s appeal from a BIA order finding him deportable under
§ 1227(a)(1)(G) for marriage fraud. See Nakamoto v. Ashcroft,
363 F.3d 874, 878 (9th Cir. 2004). Nakamoto thus appears to
support Patel’s contention that we may review the marriage-fraud
aspects of the BIA’s order. But, our precedents indicate that,
where an “order of removal cites two [independent] bases for
removal” and “the jurisdiction-stripping provisions of § 1252
clearly apply” to one of these bases, then “it does not matter
for the purposes of determining the scope of our jurisdiction
under [§ 1252] that the order of removal is also based on” a
ground not covered by § 1252’s jurisdictional bars. Flores-Garza
v. INS, 328 F.3d 797, 802 (5th Cir. 2003). Instead, in these
situations, we must dismiss the petition for review based on our
lack of jurisdiction to review the first independent ground of
removability; here, the determination that Patel is not entitled
to a discretionary good-faith marriage waiver of his conceded
removability under § 1227(a)(1)(D)(i). Id.

                                 6
burden of establishing by clear and convincing evidence that, in

the case of an alien who has been admitted to the United States,

the alien is deportable.”   8 U.S.C. § 1229a(c)(3)(A) (2000).

Here, Patel was deemed removable both as an alien whose

conditional resident status has been terminated, see

id. § 1227(a)(1)(D)(i), and as an alien who procured a visa by

marriage fraud, see id. § 1227(a)(1)(G).   The first of these

provisions makes deportable an alien who has obtained “permanent

resident status on a conditional basis under section 1186a . . .

[and] has had such status terminated,” id. § 1227(a)(1)(D)(i);

however, a second statute provides that “[t]he Attorney General

 . . . may remove the conditional basis of the permanent resident

status for an alien [whose qualifying marriage has been

terminated] if the alien demonstrates that–– . . . the qualifying

marriage was entered into in good faith by the alien spouse.”

Id. § 1186(a)(c)(4)(B) (emphasis added).   Similarly, under the

marriage fraud provision,

          An alien shall be considered to be deportable as
     having procured a visa . . . by fraud . . . if––

          (i) the alien obtains any admission into the United
     States with an immigrant visa or other documentation
     procured on the basis of a marriage entered into less
     than 2 years prior to such admission of the alien and
     which, within 2 years subsequent to any admission of the
     alien in the United States, shall be judicially annulled
     or terminated, unless the alien establishes to the
     satisfaction of the Attorney General that such marriage
     was not contracted for the purpose of evading any
     provisions of the immigration laws . . . .

Id. § 1227(a)(1)(G) (emphasis added).   Thus, the analysis

                                 7
required under each removability provision proceeds in two steps:

first, the government must prove by clear and convincing evidence

the prerequisite facts for finding the alien deportable (either

because his conditional resident status has been terminated or

for marriage fraud), then, the alien bears the burden of proving

his eligibility for relief from removability (i.e., that he

nevertheless entered into his marriage in good faith or that he

did not marry for the purpose of evading immigration laws).

     Although the IJ did not explicitly state that the government

met its initial burden under either provision, the IJ’s implicit

finding that Patel was deportable was supported by substantial

evidence.   Before the IJ, Patel admitted the facts that form the

basis of his deportability under each section.   Specifically,

Patel admitted (1) that he entered the United States on a

conditional basis in February 1997, (2) that his conditional

status was based on his marriage to a U.S. citizen, and (3) that

this marriage was judicially terminated in January 1998.    These

admissions demonstrate both that Patel was subject to termination

of his conditional resident status, see id. § 1186a(b)(2)

(explaining that such status will be terminated if the INS can

prove by a preponderance of the evidence that the alien’s

marriage was judicially terminated for a reason other than death

within two years of the grant of conditional resident status),

and that Patel was prima facie eligible for deportability as an

alien who obtained a visa by marriage fraud, see id.

                                 8
§ 1227(a)(1)(G).   Therefore, based on these admissions, it was

proper for the IJ to shift the burden of proof to Patel to

demonstrate either his eligibility for a good-faith marriage

waiver under § 1186a(c)(4)(B) or that his marriage was not

fraudulent.   Accordingly, we hold that Patel’s argument regarding

the IJ’s allocation of the burden of proof does not present a

substantial constitutional claim.

     Patel also contends that the IJ violated his substantive due

process rights by not informing him that he was eligible for a

waiver of removability, under 8 U.S.C. § 1227(a)(1)(H), based on

hardship to his qualifying relatives: his second (and current)

U.S. citizen wife and the couple’s three children.    See 8 C.F.R.

§ 240.11(a)(2) (1999) (requiring the IJ to inform an alien of his

apparent eligibility for any form of relief from removal).   The

government responds that, even if the IJ should have informed

Patel of his eligibility for this relief, we lack jurisdiction

over this claim because it was not fully exhausted.   We agree.

Patel did not claim either in his direct appeal to the BIA or in

his motion to reopen that the IJ erred by not advising him of all

available forms of relief.4   See Wang v. Ashcroft, 260 F.3d 448,

452-53 (5th Cir. 2001) (“An alien fails to exhaust his

administrative remedies with respect to an issue when the issue


     4
          In his motion to reopen Patel did argue, however, that
his counsel had been ineffective for failing to advise him that
he was eligible for the hardship waiver.

                                 9
is not raised in the first instance before the BIA––either on

direct appeal or in a motion to reopen.”).   Therefore, 8 U.S.C.

§ 1252(d)(1), which precludes judicial review when an alien has

not “exhausted all administrative remedies available to the alien

as of right,” bars our jurisdiction over this claim.

B.   BIA’s Denial of Patel’s Motion to Reopen

     In his second petition for review, Patel argues that the BIA

erred in denying his motion to reopen based on the ineffective

assistance of his counsel.   Patel claims that his counsel, who

represented him before the IJ, was ineffective in at least three

ways: (1) by failing to explain to the IJ the cultural context of

his arranged marriage to Sonal, (2) by failing to object to the

IJ’s improper allocation of the burden of proof, and (3) by

failing to advise Patel of his eligibility for a waiver of his

deportability under § 1227(a)(1)(H) based on his second marriage

to a U.S. citizen and the births of his three U.S. citizen

children.   See § 1227(a)(1)(H) (waiving certain grounds of

removability on the basis of an alien’s marriage to a U.S.

citizen).

     Once again, we must, as an initial matter, determine whether

we have jurisdiction to review the BIA’s order denying Patel’s

motion to reopen.   As we recently explained in Assaad, No. 03-

60201, manuscript at 5-7, we lack jurisdiction to review the

BIA’s denial of an alien’s motion to reopen under 8 U.S.C.

§ 1252(a)(2)(B)(ii) if the underlying relief sought by the alien

                                10
was committed to the BIA’s discretion.

     We have already determined that we lack jurisdiction to

review the BIA’s decision that Patel should not be granted a

good-faith marriage waiver of his removability.     Just as

§ 1252(a)(2)(B)(ii) barred our review of the BIA’s final order

denying this form of relief, so does it bar our jurisdiction over

the BIA’s denial of Patel’s motion to reopen.     Patel also argued,

however, in his motion to reopen, that he was eligible for a

waiver of his removability under § 1227(a)(1)(D)(i) because of

his current marriage to U.S. citizen and the birth of his three

U.S. citizen children.   See § 1227(a)(1)(H).    Yet, the decision

whether to grant this waiver is also committed by statute solely

to the discretion of the Attorney General.      See id. (stating that

the removability of an alien under the provisions of § 1227(a)(1)

“may, in the discretion of the Attorney General, be waived for

any alien” who meets certain specified criteria); see also San

Pedro v. Ashcroft, No. 02-74367, 2004 WL 1396286, at *1 (9th Cir.

June 23, 2004).   Therefore, because the underlying relief sought

by Patel was committed to the Attorney General’s discretion,

§ 1252(a)(2)(B)(ii) precludes judicial review of the BIA’s order

denying Patel’s motion to reopen.

     Nevertheless, as we clarified above, we may review the

motion to reopen if Patel’s contention that his counsel was

ineffective presents a substantial constitutional claim.      Patel

argues that his motion satisfies this test because his counsel’s

                                11
alleged ineffectiveness rendered his immigration proceedings

fundamentally unfair, violating his Fifth Amendment right to due

process of law.   This argument is legally untenable.     The alleged

ineffectiveness of Patel’s counsel denied him, at most, the

chance to receive either of the two discretionary waivers of his

removability under § 1227(a)(1)(D)(i).   Accordingly, because an

alien does not have a protected liberty interest in obtaining a

discretionary waiver of his removability, we hold that Patel did

not raise a substantial constitutional claim in his motion to

reopen.   See Assaad, No. 03-60201, manuscript at 8-9.5

     Lastly, Patel contends that the BIA’s refusal to grant or

even to address his request for an extension of his voluntary

departure in his motion to reopen violated his due process

rights.   Once again, the jurisdiction-stripping provisions of

§ 1252 deny this court the authority to review this claim, see

§ 1252(a)(2)(B)(i) (stating that “[n]otwithstanding any other

provision of law, no court shall have jurisdiction to review––any

judgment regarding the granting of relief under section . . .


     5
          We note the possibility, raised by Patel, that his
attorney’s performance effectively denied him the opportunity to
refute the government’s contention that he was deportable for
engaging in marriage fraud. Although the BIA’s conclusion that
Patel had committed marriage fraud may not have been purely
discretionary, see supra note 2, this does not affect our
conclusion that we lack jurisdiction over Patel’s petition for
review. Regardless of whether Patel was deportable for
committing marriage fraud, the BIA independently held that he was
deportable under § 1227(a)(1)(D)(i), and the only relief Patel
sought from this order was purely discretionary in nature.

                                12
1229c of this title,” which governs voluntary departure), unless

Patel’s petition presents a substantial constitutional claim.

     Patel’s contention that the BIA’s refusal to extend his term

of voluntary departure was constitutionally impermissible is

based on a hypothetical sequence of events that has not come to

pass.    He argues that, because his period of voluntary departure

expired before we heard oral argument on his petition for review,

if this court decides that Patel’s counsel was constitutionally

defective and remands the case to the BIA, the BIA could then

claim that it no longer has jurisdiction over the motion to

reopen because Patel would have left the country.    See 8 C.F.R.

§ 1003.4 (2004) (equating departure from the country with

withdrawing an appeal).   Patel thus argues that the BIA’s refusal

to extend his voluntary departure effectively will have deprived

him of judicial review of his ineffective-assistance-of-counsel

claim.    Yet, we have held that Patel’s attorney’s performance did

not violate his Fifth Amendment rights, and his attorney has also

informed us, at oral argument, that Patel has not yet left the

country.    Therefore, Patel’s voluntary-departure argument does

not present a substantial constitutional claim.

                           III. CONCLUSION

     For the foregoing reasons, we DISMISS Patel’s petitions for

review.




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