                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      December 10, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
CHARLES NII AMARTEY,

             Petitioner,

v.                                                          No. 12-9539
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      Charles Nii Amartey petitions for review of an order of the Board of

Immigration Appeals (BIA or Board), which denied his application for special-rule

cancellation of removal under 8 U.S.C. § 1229b(b)(2) because he failed to




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
demonstrate that removal would result in extreme hardship to him. Exercising

jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.

                                     Background

      Amartey is a native and citizen of Ghana who entered the United States on

May 26, 2003, on a nonimmigrant visitor visa. Rather than exiting the country before

the expiration of his authorized six-month stay, he married a United States Citizen

and remained in the United States. In April 2004, Amartey’s wife filed a visa

petition on his behalf, and he applied to adjust his status to lawful permanent

resident. After interviewing Amartey and his wife, Citizenship and Immigration

Services (“CIS”) suspected that their marriage was fraudulent and referred the matter

for further investigation. Amartey’s wife subsequently withdrew the visa petition,

acknowledging that the purpose of the marriage was so that Amartey could obtain

United States citizenship. CIS ultimately denied the visa petition and adjustment

application in May 2008, on the basis that the marriage was fraudulent.

      The Department of Homeland Security (“DHS”) served Amartey with a notice

to appear on June 27, 2008, charging him with removability on two grounds: (1) as

an alien who entered the United States on a nonimmigrant visa and remained longer

than permitted, see 8 U.S.C. § 1227(a)(1)(B); and (2) as an alien who sought to

procure a benefit under the Immigration and Nationality Act (“INA”) by fraud or

willful misrepresentation of a material fact, see id. § 1227(a)(1)(A); 8 U.S.C.

§ 1182(a)(6)(C)(i). At a hearing before an immigration judge (“IJ”), Amartey


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conceded removability on the overstay charge but denied the fraud charge. He also

applied for special-rule cancellation of removal under 8 U.S.C. § 1229b(b)(2),

claiming that he was the battered spouse of a United States citizen.

                                     IJ’s Decision

      The IJ found Amartey removable as charged and denied his application for

relief, observing that “this is one of the more significant cases of marriage fraud that

the Court has seen.” Admin. R. at 27. He also found that Amartey was not a credible

witness. But because the BIA or this court might disagree with his credibility

assessment, the IJ proceeded to make findings on the statutory requirements for

special-rule cancellation of removal.

      As relevant to this case, § 1229b(b)(2) authorizes the Attorney General, in his

discretion, to cancel the removal of an alien who demonstrates that (1) he has been

battered or subjected to extreme cruelty by a United States citizen spouse; (2) he has

been physically present in the United States for a continuous period of at least three

years before filing his application; (3) he has been a person of good moral character

during that period; (4) he is not inadmissible or deportable under specified sections of

the INA; and (5) “the removal would result in extreme hardship to the alien.”

8 U.S.C. § 1229b(b)(2)(A)(i)-(v). The IJ determined that Amartey failed to establish

that he had been the victim of battery or extreme cruelty. But even assuming that he

had satisfied that requirement, the IJ found that he failed to demonstrate that his

removal would result in extreme hardship to him. Finally, the IJ indicated that he


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would ultimately deny Amartey’s application in the exercise of discretion. The IJ

therefore denied Amartey’s application for special-rule cancellation of removal and

ordered him removed.

                                   BIA’s Decision

      Amartey appealed the IJ’s removal order to the BIA. He argued that the IJ

erred in allowing DHS to present evidence regarding its charge of marriage fraud

because DHS failed to disclose the evidence to Amartey before the hearing. The BIA

first affirmed the IJ’s conclusion that Amartey was removable under § 1227(a)(1)(B),

because he failed to contest the charge that he overstayed his nonimmigrant visa.

The Board explicitly did not address or affirm the IJ’s alternative conclusion that

Amartey was removable under § 1227(a)(1)(A), based on a fraudulent marriage. As

to that charge, the BIA stated: “While we have concerns about the DHS’s litigation

strategy with regard to its endeavor to prove marriage fraud, we are unable to

conclude that the respondent has suffered any prejudice as a result of the DHS’s

actions, since we are not reaching any marriage fraud issues.” Admin. R. at 3 n.1.

      The BIA next affirmed the IJ’s determination that Amartey failed to

demonstrate that his removal to Ghana would result in extreme hardship to himself,

as required by § 1229b(b)(2)(A)(v). The Board cited the following factors, which the

IJ had also relied on, as supporting its decision: Amartey’s short stay in the United

States; the lack of evidence that he had a health condition that would be adversely

affected by his removal to Ghana; the absence of any risk that his former spouse


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would travel to Ghana to harm him; and Amartey’s educational background and

employment history in Ghana. The BIA noted that Amartey had not asserted that any

of the IJ’s findings were clearly erroneous. It also concluded that any ridicule

Amartey may suffer in Ghana based on his being a victim of domestic violence did

not amount to an extreme form of hardship. After reiterating that it was not

“considering or affirming any of the [IJ’s] determinations relating to marriage fraud,”

the Board found “that the record supports the [IJ’s] conclusion relating to the

respondent’s failure to establish extreme hardship.” Admin. R. at 4. Finally, the BIA

also explicitly stated that it would “not address the issues of credibility, battery,

extreme cruelty, or discretion.” Id.

       The BIA therefore dismissed Amartey’s appeal and ordered him removed to

Ghana. Amartey filed a timely petition for review of the Board’s decision.

                                       Discussion

       Amartey contends that the IJ violated his due process rights by allowing DHS

to present certain witnesses and evidence during the hearing, and that the BIA erred

in concluding that he did not suffer any prejudice as a result of DHS’s litigation

strategy. More specifically, Amartey contends that, without the improperly admitted

evidence, the IJ may have found him credible and may have relied on his testimony

to determine that he was statutorily eligible for special-rule cancellation of removal

under § 1229b(b)(2). And because the BIA affirmed the IJ’s determination under that

section, Amartey argues that the IJ’s due process violation therefore prejudiced him.


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      Because a single member of the BIA affirmed the IJ’s decision in a brief order,

see 8 C.F.R. § 1003.1(e)(5), we review the BIA’s opinion rather than the decision of

the IJ, see Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review

the agency’s factual findings for substantial evidence and its legal determinations de

novo. Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001). We have jurisdiction to

review the BIA’s discretionary determination regarding extreme hardship under

§ 1229b(b)(2)(A)(v) only to the extent that Amartey raises a constitutional claim or a

question of law. See Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.

2003) (holding hardship determination is discretionary decision unreviewable under

8 U.S.C. § 1252(a)(2)(B)(i)); Arambula-Medina v. Holder, 572 F.3d 824, 828

(10th Cir. 2009) (holding court has jurisdiction to review constitutional claims and

questions of law with respect to extreme hardship issue under 8 U.S.C.

§ 1252(a)(2)(D)).

      Amartey’s contentions of error are unavailing. He asserts that the IJ violated

his due process rights by considering DHS’s evidence of marriage fraud, and he

claims that the BIA “erred in affirming the IJ’s improper application of legal

standards.” Pet. Br. at 7. But the BIA did not consider or affirm the IJ’s decision to

admit DHS’s evidence. Rather, the Board found that Amartey was removable on the

alternative charge that he overstayed his nonimmigrant visa, a point that he conceded.

The BIA thereafter expressly declined to address any issue related to the IJ’s




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marriage fraud determination, including Amartey’s contention that the IJ violated his

due process rights with respect to that issue.

      Amartey argues that the BIA nonetheless erred in concluding that he was not

prejudiced by DHS’s litigation strategy on the marriage fraud issue. He claims that

the IJ relied on the improperly admitted evidence in making his adverse credibility

finding, which in turn affected the IJ’s determination regarding his eligibility for

discretionary relief under § 1229b(b)(2). But the BIA affirmed the IJ’s denial of

relief solely on the basis of Amartey’s failure to demonstrate the requisite hardship

under § 1229b(b)(2)(A)(v). He fails to show that the IJ’s credibility finding or the

evidence he claims was improperly admitted by the IJ played any role in the Board’s

decision. The BIA expressly declined to address the issue of Amartey’s credibility.

Thus, it did not reject Amartey’s evidence of hardship as not credible. To the

contrary, the Board carefully considered the evidence he presented, but concluded

that it was insufficient “to establish that he would suffer hardship that is substantially

different from, or beyond, that which would normally be expected from the removal

of an alien from the United States.” Admin. R. at 4.




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                                     Conclusion

      Amartey conceded removability based on overstaying his nonimmigrant visa.

And he has not raised a meritorious constitutional claim or a question of law with

respect to the BIA’s determination that he failed to establish that his removal would

result in extreme hardship. The petition for review is therefore DENIED.


                                               Entered for the Court


                                               David M. Ebel
                                               Circuit Judge




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