                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 11 2009

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




                             FOR THE NINTH CIRCUIT



ELVIRA ABGARYAN,                                 No. 05-74894

              Petitioner,                        Agency No. A076-356-840

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

              Respondent.



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

                            Submitted December 9, 2009 **
                              San Francisco, California

 Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, *** District
                             Judge.

       Petitioner Elvira Abgaryan (“Abgaryan”), a citizen of Armenia, seeks

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Barbara M.G. Lynn, U.S. District Judge for the
Northern District of Texas, sitting by designation.

                                          1
cancellation of removal under the battered spouse provision of the Immigration and

Nationality Act (INA). INA § 240A(b)(2); 8 U.S.C. § 1229b(b)(2). We have

jurisdiction pursuant to 8 U.S.C. § 1252 and we deny the petition for cancellation

of removal.1

      Although the Attorney General has discretion whether to grant or deny an

application for cancellation of removal, see 8 U.S.C. § 1229b(b)(2), we retain

jurisdiction to review an alien’s statutory eligibility for such relief. See Montero-

Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir. 2002) (holding that the

court retained jurisdiction to review the purely legal question of whether the

applicant’s adult daughter qualified as a “child” under section 240A(b)(1) and was

thus eligible for cancellation of removal). Thus, we have jurisdiction to review the

BIA’s determination that Abgaryan is ineligible for cancellation of removal under

section 240A(b)(2) because she failed to establish the validity of her marriage to a

United States citizen by showing that her first marriage had ended in death or

divorce.

      We conclude that the record does not compel a conclusion contrary to the

BIA’s. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The



      1
             The parties are familiar with the facts of this case and we repeat them
here only as necessary.

                                           2
government’s expert witness testified that the death certificate Abgaryan presented

was fraudulent. Furthermore, the United States embassy in Armenia submitted a

report stating the divorce decree Abgaryan proffered was false. Abgaryan has

pointed to no evidence contradicting these findings or otherwise compelling the

conclusion that her subsequent marriage to a United States citizen was legally

valid.2

          PETITION DENIED.




          2
             We do not review the IJ’s adverse credibility finding, since the BIA
did not address it. See Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).

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