             Case: 13-12330   Date Filed: 02/28/2014   Page: 1 of 6


                                                                      [PUBLISH]


                                CORRECTED

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-12330
                           Non-Argument Calendar
                         ________________________

                          Agency No. A099-239-422


JOHN TSIBO FYNN,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                          ________________________

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      John Tsibo Fynn, a native and citizen of Ghana, seeks review of the Board

of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”)
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denial of his application for a waiver of the joint-filing requirement to remove the

conditions on his lawful permanent residence under 8 U.S.C. § 1186a(c)(4)(B).

The IJ denied Fynn a waiver based on an adverse credibility finding, which the

BIA affirmed. On appeal, Fynn argues that: (1) the agency erred in denying his

waiver because, based on the totality of the facts and circumstances, a reasonable

fact finder would conclude that he and ex-wife Brande Mitchell entered into their

marriage in good faith; and (2) the IJ erred in weighing the evidence and relied on

supporting evidence without proper inquiry, which violated his due process rights.

In response, the government claims that we lack jurisdiction to review Fynn’s

claims. After thorough review, we dismiss the petition.

       We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza

v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

      First, we agree with the government that we lack jurisdiction over Fynn’s

claim that he and his ex-wife entered into their marriage in good faith. As the

Immigration and Nationality Act (“INA”) makes clear, we lack jurisdiction to

review a “decision or action of the Attorney General or the Secretary of Homeland

Security the authority for which is specified under [8 U.S.C. §§ 1151-1378] to be

in the discretion of the Attorney General or the Secretary of Homeland Security.”

8 U.S.C. § 1252(a)(2)(B)(ii); see also Zafar v. U.S. Att’y Gen., 461 F.3d 1357,

1361 (11th Cir. 2006).     Nevertheless, we retain jurisdiction over a petition’s

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constitutional claims or questions of law, such as statutory eligibility for

discretionary relief. 8 U.S.C. § 1252(a)(2)(D); Alvarado v. U.S. Att’y Gen., 610

F.3d 1311, 1314 n.4 (11th Cir. 2010).             Argument that the IJ or BIA abused its

discretion by improperly weighing evidence is a “garden-variety abuse of

discretion argument” that is insufficient to state a legal or constitutional claim.

Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196-97 (11th Cir. 2008).

       The INA explicitly assigns to the Secretary of Homeland Security the

discretion to “remove the conditional basis of the permanent resident status for an

alien” who demonstrates that “the qualifying marriage was entered into in good

faith by the alien spouse, but the qualifying marriage has been terminated.” 8

U.S.C. § 1186a(c)(4)(B). The statute further provides that “[t]he determination of

what evidence is credible and the weight to be given that evidence shall be within

the sole discretion of the Secretary of Homeland Security.” Id. § 1186a(c)(4).

       Even though a majority of circuit courts to have considered the issue have

determined that they have jurisdiction to review whether a marriage was entered

into in good faith,1 all but one circuit has indicated that it lacks jurisdiction to


1
        The First, Sixth, Eight, Ninth, and Tenth Circuits have held that they have jurisdiction to
review the determination existed that the marriage was not entered into in good faith. See Johns
v. Holder, 678 F.3d 404, 407 (6th Cir. 2012) (persuasive authority); Iliev v. Holder, 613 F.3d
1019, 1023 (10th Cir. 2010) (relying on the plain language of § 1252(a)(2)(B)(ii) and (D) to
determine jurisdiction existed to the extent that the petitioner was raising a legal claim)
(persuasive authority); Ibrahimi v. Holder, 566 F.3d 758, 763-64 (8th Cir. 2009) (indicating that
while the good-faith marriage determination involved some fact-finding, the question of whether
a marriage was entered into in good faith was a “predicate legal question” that amounted to a
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review challenges to the agency’s credibility determination and the weight given to

the evidence as related to § 1186a(c)(4). Compare Boadi v. Holder, 706 F.3d 854,

860-61 (7th Cir. 2013) (finding no jurisdiction to review credibility determination

and weight given to the evidence) (persuasive authority); Johns, 678 F.3d at 406

(same); Iliev, 613 F.3d at 1023, 1027-28 (same); Contreras-Salinas v. Holder, 585

F.3d 710, 713-15 (2d Cir. 2009) (same) (persuasive authority), Cho, 404 F.3d at

101 (same), with Oropeza-Wong, 406 F.3d at 1143-47 (finding jurisdiction to

review the credibility determination and weight given to the evidence based on the

legislative history).

       Based on the language of §§ 1186a(c)(4) and 1252(a)(2)(B)(ii), we agree

with the majority of our sister circuits and conclude that we lack jurisdiction to

review Fynn’s petition. Section 1186a(c)(4) explicitly provides that the Secretary

of Homeland Security has the “sole discretion” to determine what evidence is

credible and the weight given to such evidence.                     8 U.S.C. § 1186a(c)(4).

Additionally, of the six circuit courts that have considered the issue, five of them


nondiscretionary determination related to the eligibility for relief that the Court had jurisdiction
to review) (persuasive authority); Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1143 (9th Cir.
2005) (finding jursdiction because “[p]etitions for statutory waivers under § 1186a(c)(4)(B) on
the basis of a good faith marriage involve legal and factual questions that are not subject to the
pure discretion of the IJ or BIA”) (persuasive authority); Cho v. Gonzales, 404 F.3d 96, 101 (1st
Cir. 2005) (finding jurisdiction because “the decision whether an alien has married in good faith
is not completely discretionary but is, rather, a decision with a legal component that helps define
the class of aliens eligible for hardship waivers”) (persuasive authority). However, the Third and
Fifth Circuits have held that they lack jurisdiction to review such determinations. Assaad v.
Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (persuasive authority); Urena-Tavarez v. Ashcroft,
367 F.3d 154, 160 (3d Cir. 2004) (persuasive authority).
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have relied on the plain language of § 1186a(c)(4) and the jurisdictional bar to

discretionary determinations in § 1252(a)(2)(B)(ii) to determine that they lack

jurisdiction to review credibility determinations and the weight given to the

evidence when reviewing the denial of a waiver of a joint petition under §

1186a(c)(4)(B). See Boadi, 706 F.3d at 860-61; Johns, 678 F.3d at 406; Iliev, 613

F.3d at 1023, 1027-28; Contreras-Salinas, 585 F.3d at 713-14; Ibrahimi, 566 F.3d

at 764; Cho, 404 F.3d at 101.

      Fynn attempts to circumvent this jurisdictional bar in his reply brief by

asserting that he is raising a legal claim over which we have jurisdiction,

specifically that the IJ failed to consider probative testimony as to ex-wife’s

medical condition. However, contrary to this assertion, Fynn’s initial brief reflects

that he is challenging the agency’s adverse credibility determination and the weight

given to the evidence, not raising a legal question. In his initial brief, Fynn

highlights the ways in which his and his ex-wife’s testimony was consistent and

argues that the inconsistencies can be explained by the passage of time and his ex-

wife’s medical condition.       He explicitly argues that the agency did not give

“sufficient weight” and did not “properly weigh” the impact of her medical

condition and medication on her testimony. Moreover, in his reply brief, Fynn

acknowledges that the agency did consider her condition, but argues that the

agency should have given it more weight in making the adverse credibility

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determination. In short, regardless of Fynn’s attempts to characterize his claim as

a legal question, he is essentially challenging the agency’s credibility

determination and the relative weight accorded to the evidence, which is a “garden-

variety abuse of discretion argument” that is insufficient to state a legal claim over

which we have jurisdiction under § 1252(a)(2)(D). See Alvarez Acosta, 524 F.3d

at 1196-97. Therefore, we dismiss Fynn’s petition for review as to this issue.

      We also conclude that we lack jurisdiction to review Fynn’s due process

challenge. Indeed, we may not review a final order of removal unless “the alien

has exhausted all administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1).     If a petitioner has failed to exhaust his administrative

remedies, we lack jurisdiction to consider the claim. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006).

      In this case, we lack jurisdiction to consider Fynn’s due process claim.

While Fynn asserts that the agency violated his due process rights, he is merely

reiterating the arguments he raised above and challenging the weight given to the

evidence. Accordingly, for the reasons discussed above, we lack jurisdiction to

review such arguments. To the extent that Fynn is in fact raising a due process

claim, we lack jurisdiction to review such a claim because Fynn failed to exhaust

this claim before the BIA. Id.

      PETITION DISMISSED.

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