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

                           FOR THE TENTH CIRCUIT                         June 2, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
AHMAD KADIM,

             Petitioner,

v.                                                         No. 13-9571
                                                       (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.


      Ahmad Kadim, a native and citizen of Iraq, petitions for review of the Bureau

of Immigration Appeals (BIA) decision affirming the immigration judge’s (IJ)

decision ordering him removed and denying his request for an extreme-hardship

waiver. We dismiss the petition in part for lack of jurisdiction and deny the


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
remainder of the petition for failure to assert viable constitutional or legal claims.

See 8 U.S.C. §§ 1252(a)(2)(B)(ii), (D) (denying jurisdiction to review discretionary

decisions, but not precluding court’s review of constitutional claims or legal

questions).

I. Background

      Mr. Kadim married Stephanie Mistretta, a United States citizen, in Ammon,

Jordan in October 2000. Based on the marriage, he entered the United States on

January 8, 2001, as a conditional permanent resident. See 8 U.S.C. § 1186a(a)(1)

(providing that alien who marries United States citizen “obtain[s] the status of an

alien lawfully admitted for permanent residence” on “conditional basis”). On

January 10, 2003, the two purportedly filed a joint petition to remove the conditions

on his residence status.1 See id. § 1186a(d)(2)(A) (requiring joint petition to be filed

“during the 90-day period before the second anniversary of the alien’s obtaining the

status of lawful admission for permanent residence”). Ms. Mistretta withdrew the

petition on June 15, 2004. On June 22, the United States Citizenship and

Immigration Services (USCIS) terminated Mr. Kadim’s conditional-permanent-

resident status under 8 U.S.C. § 1186a(c)(3)(C), because the conditions on his

residence had not been lifted.




1
      Ms. Mistretta testified that she never signed the joint petition.


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      Mr. Kadim then sought a waiver for extreme hardship, citing his life-long

struggle with kidney disease and need for medical care.2 See id. § 1186a(c)(4)(A)

(permitting alien to apply for discretionary waiver of joint filing requirement if he

can show removal would result in extreme hardship). After the USCIS denied a

waiver on August 23, 2008, and again terminated his conditional-permanent-resident

status, Immigration and Customs Enforcement placed him in removal proceedings,

charging him with being a conditional permanent resident with terminated status, see

id. § 1227(a)(1)(D)(i).

      In removal proceedings, Mr. Kadim conceded that his conditional-permanent-

resident status had terminated on September 18, 2008, the date set forth on the notice

to appear. He renewed his application for a waiver. See id. § 1186a(c)(3)(D)

(permitting “alien whose permanent resident status is terminated” to request review

in removal proceedings). The IJ denied relief, concluding that Mr. Kadim had not

qualified for the extreme-hardship exception before the USCIS terminated his

conditional-permanent-resident status. In reaching this conclusion, the IJ determined

that Mr. Kadim was required to prove extreme hardship between his entry into the

United States (January 8, 2001) and the termination date (June 22, 2004). Although

recognizing that Mr. Kadim had kidney problems before he entered the United States,


2
      Mr. Kadim also sought a waiver because he allegedly had entered into his
marriage in good faith but could not file a joint petition because the marriage had
ended in divorce. See 8 U.S.C. § 1186a(c)(4)(B). He no longer asserts a good-faith
marriage as a basis for a waiver.


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the IJ determined that extreme hardship due to renal failure did not occur until 2011,

six years after termination of conditional-permanent-resident status. Even if

Mr. Kadim had qualified for the hardship waiver, the IJ indicated that he would have

exercised his discretion to deny a hardship waiver in light of Mr. Kadim’s “massive

marriage fraud” and perpetuation of the fraud before the agency, as well as his

physical abuse of and threats to Ms. Mistretta. Admin. R. at 82. Mr. Kadim

appealed to the BIA.

      In a decision by a single board member, the BIA dismissed the appeal. The

BIA found, contrary to Mr. Kadim’s argument, that the IJ did not require Mr. Kadim

to show that he entered into the marriage in good faith in order to show extreme

hardship and that the IJ properly considered hardship between the time Mr. Kadim

was admitted to the United States as a conditional permanent resident and the time

the USCIS terminated that status. Within that time period, his kidney disease caused

extreme hardship only after his conditional-permanent-resident status terminated in

2004. In rejecting Mr. Kadim’s assertion that the IJ violated his due process rights,

the BIA concluded that the IJ based his decision on the evidence in the record and

that Mr. Kadim did not show that the proceedings were fundamentally unfair.

II. Discussion

      A. Standard of Review

      We lack jurisdiction to review the agency’s discretionary decision to deny a

hardship waiver to an eligible alien. See Iliev v. Holder, 613 F.3d 1019, 1023


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(10th Cir. 2010) (citing 8 U.S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii)). But we have

jurisdiction to review the petition to the extent it contends that the agency’s actions

implicate constitutional claims or legal questions. See id. at 1022, 1023. We review

claims of constitutional or legal error de novo. Lorenzo v. Mukasey, 508 F.3d 1278,

1282 (10th Cir. 2007).

      B. Extreme-Hardship Waiver

      Mr. Kadim argues that § 1186a(c)(4) does not set forth a good-faith-marriage

requirement for extreme-hardship waiver and the BIA wrongly required him to show

that he entered into his marriage in good faith in order to qualify for an extreme-

hardship waiver. It is true that “the plain language of the statute does not require a

good faith marriage to obtain an extreme hardship waiver.” Waggoner v. Gonzales,

488 F.3d 632, 633 (5th Cir. 2007). But the BIA did not require a good-faith marriage

when it upheld the IJ’s determination that the extreme-hardship waiver did not apply.

Like the IJ, the BIA explicitly recognized that the extreme-hardship and good-faith-

marriage waivers are independent and have separate requirements.3 Accordingly, we

conclude that there was no legal error.


3
       It was only after Mr. Kadim failed to meet the statutory prerequisite of
demonstrating extreme hardship that the IJ stated (in dicta) that based on the
fraudulent marriage, the IJ would not have exercised his discretion even if Mr. Kadim
had shown extreme hardship. See 8 U.S.C. § 1186a(c)(4) (requiring alien to
demonstrate extreme hardship before Secretary of Homeland Security may exercise
discretion to grant or deny waiver); see also Waggoner, 488 F.3d at 637 (stating that
once alien shows extreme hardship would result from removal, agency then decides
whether to exercise discretion to remove conditions of permanent residence).


                                          -5-
      C. Termination of Conditional-Permanent-Resident Status

      Mr. Kadim argues that the BIA did not properly consider his conditional-

permanent-resident status. Although he admits that the USCIS terminated his

conditional-permanent-resident status in 2004, he contends that he retained that status

during the review of his removal proceedings, because only the IJ or the BIA can

terminate conditional-permanent-resident status by a final order of removal. Thus, he

maintains that the evidence of extreme hardship was not limited to the time between

October 2000, when he obtained conditional-permanent-resident status, and October

2002, when it was terminated, and the IJ and BIA should have considered his

evidence of latter hardship due to kidney disease.

      Legal authority does not support Mr. Kadim’s argument. “In determining

extreme hardship, the Secretary of Homeland Security shall consider circumstances

occurring only during the period that the alien was admitted for permanent residence

on a conditional basis.” 8 U.S.C. § 1186a(c)(4). This “statute provides both a start

date and an end date for the period during which the relevant circumstances must

occur.” In re Singh, 24 I. & N. Dec. 331, 333 (BIA 2007). Termination of

conditional-permanent-resident status occurs “as of the date of the determination.”

8 U.S.C. § 1186a(c)(3)(C). Thus, “conditional resident status . . . technically ends

when the [USCIS] terminates such status . . . .” In re Stowers, 22 I. & N. Dec. 605,

612 (BIA 1999); see also 8 C.F.R. § 216.3(a) (“The termination of status . . . shall

take effect as of the date of such determination by the director, although the alien


                                          -6-
may request a review of such determination in removal proceedings.”). Even after

conditional resident status is terminated, a former conditional resident may apply for

a hardship waiver. Stowers, 22 I. & N. Dec. at 613. If he does so, he temporarily

retains his former status pending review in removal proceedings. Id. at 612 n.10.

      Applying this law to Mr. Kadim’s situation, it is clear, as the agency found,

that Mr. Kadim’s conditional-permanent-residence status was terminated on June 22,

2004. The statute requires that “extreme hardship” be determined between the start

of his conditional-permanent-resident status and its termination, 8 U.S.C.

§§ 1186a(c)(3)(C), (c)(4); temporarily retaining conditional-permanent-resident

status during removal proceedings does not negate this statutory requirement.

Indeed, Mr. Kadim provides no law, and we have found none, supporting an assertion

that temporary retention of status would extend the time period for demonstrating

extreme hardship beyond the June 22, 2004, date of termination. Furthermore,

Mr. Kadim admitted in IJ proceedings that his conditional-permanent-resident status

terminated before IJ proceedings began. See Admin. R. 87, 459. He cannot argue

now that his status continued until the agency entered a final order of removal.

Because there was no legal error, we deny this claim.

      D. IJ’s Interpretation of Medical Evidence

      Lastly, Mr. Kadim argues that the IJ supplanted the medical evidence with his

own conclusions regarding Mr. Kadim’s health and the BIA accepted those

conclusions without analysis. Mr. Kadim maintains that due process requires the IJ


                                         -7-
to support his decision with evidence in the administrative record, which shows that

he has suffered from kidney disease his entire life and is now on a waiting list for a

kidney transplant. Despite arguing a denial of due process, Mr. Kadim in essence

challenges the IJ’s weighing of the evidence, a matter we lack jurisdiction to review.

See 8 U.S.C. § 1252(a)(2)(B)(ii); Iliev, 613 F.3d at 1022, 1027. Because Mr. Kadim

fails to raise a colorable legal or constitutional question, we dismiss this claim for

lack of jurisdiction.

III. Conclusion

       The petition for review is dismissed in part for lack of jurisdiction and denied

in part.


                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




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