                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

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




                            FOR THE NINTH CIRCUIT



FLORENCE ACADEMIA CALMA,                         No. 06-70052

             Petitioner,                         Agency No. A045-471-108

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

             Respondent.



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

                      Argued and Submitted October 6, 2009
                            San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and STROM, ** District
Judge.

       Florence Academia Calma Jones, a native and citizen of the Philippines,

seeks review of the denial of a good faith marriage waiver under 8 U.S.C. §

1186a(c)(4)(B). Having failed to submit a joint petition with her spouse before the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Lyle E. Strom, Senior U.S. District Judge for District
of Nebraska, sitting by designation.
conclusion of her two-year conditional permanent residency, Calma bears the

burden of showing that her marriage was entered into in good faith. See 8 U.S.C. §

1186a(c)(4).

      Substantial evidence supports the Board of Immigration Appeals’ (“BIA’s”)

determination not to credit Calma’s assertions of good faith, given the

circumstances of the marriage. The record indicates that Calma and her husband

never lived together, bought or held property together, or commingled any funds.

Moreover, after a relative told Calma that she had paid Calma’s husband to enter

into the marriage, Calma continued to sign over her paychecks to a joint checking

account controlled by the relative.

      Calma also challenges the denial, on grounds of marriage fraud, see 8 U.S.C.

§ 1154(c), of an immediate relative visa petition, maintaining that had the visa

been approved as it should have been, the order of removal could not stand. For

the same reasons we have given with regard to the good faith marriage waiver, the

determination that there was marriage fraud was necessarily supported by

substantial evidence. As the visa question is thus essentially mooted by our good

faith determination, we need not decide whether we may independently review the

merits of a visa denial on a petition for review from a later removal order.




                                          2
       Calma next seeks review of the denial of an extreme hardship waiver under

8 U.S.C. § 1186a(c)(4)(A). To the extent that she relies on hardship resulting

from the break-up of her second marriage, we lack jurisdiction to consider her

argument because she did not make it before the BIA. See Barron v. Ashcroft,

358 F.3d 674, 677 (9th Cir. 2004). As Calma has not, in her petition for review,

identified record evidence of any other hardship that she would suffer upon

removal, we need not decide whether the BIA’s decision on the merits concerning

the extreme hardship waiver is reviewable in this court.

       Finally, Calma argues that she was entitled to a waiver of removability

under 8 U.S.C. § 1227(a)(1)(H). Her argument is without merit. That provision

operates to waive removal only when predicated on inadmissibility at the time of

entry. See Garawan v. I.N.S., 91 F.3d 1332, 1334-35 (9th Cir. 1996) (interpreting

a prior version of § 1227(a)(1)(H)). Because Calma is subject to removal for

failure to file a joint petition two years after entry, she is ineligible for the waiver

in § 1227(a)(1)(H). See id. at 1335.

       The petition for review is denied.




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