Alvarado de Rodriguez v. Holder, No. 08-60585 (5th Cir. Oct. 9, 2009).

Alvarado de Rodriguez v. Holder, No. 08-60585 (5th Cir. Oct. 9, 2009).

Under 8 U.S.C. § 1252(a)(2)(B)(ii), a court of appeals lacks jurisdiction to review the discretionary decisions of the BIA. However, a court of appeals reviews the factual findings of the BIA under the substantial evidence standard, reversing only when the evidence compels a contrary result. A court of appeals reviews questions of law de novo.

Section 1252(a)(2)(B)(ii) of the INA proscribes judicial review of any decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General. Under the INA, the granting of a hardship waiver for an individual is reserved to the discretion of the Attorney General. However the Attorney General does not have unfettered discretion; instead, such discretion is available only if the alien demonstrates that the marriage was entered into in good faith.

The REAL ID Act of 2005 removes jurisdictional bars to direct review of questions of law in final removal, deportation, and exclusion orders. Under the REAL ID Act, the predicate legal question of whether the IJ properly applied the law to the facts in determining the alien’s eligibility for discretionary relief is a question of law properly raised in a petition for review.

The petition for review is properly before a court of appeals when neither the IJ nor the BIA made the discretionary decision to deny the petitioner a good faith hardship waiver, and when the BIA held that the petitioner was statutorily ineligible for a hardship waiver because she failed as a matter of law to marshal sufficient evidence of good faith.

Where the petitioner raises challenges to the standard of review applied by the BIA to the factual findings of the IJ and contends that the BIA erred in finding her evidence legally insufficient to establish good faith, and where the petitioner also presents a constitutional challenge to the admission of an affidavit by her ex-husband, there are legal and constitutional issues unrelated to the discretion reserved to the Attorney General, and accordingly, jurisdiction is proper.

The BIA’s consideration of the IJ’s findings of fact and credibility determinations is limited to a clear error review. Under 8 C.F.R. § 1003.1(d)(3)(I), the BIA cannot engage in de novo review of findings of fact determined by an immigration judge. Instead, the BIA reviews those facts, including credibility determinations, only to determine whether they are clearly erroneous. The BIA may not overturn an IJ’s factual findings “simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.

Common sense as well as the weight of authority requires that a court of appeals determines whether the BIA applied the correct legal standard, not simply whether it stated the correct legal standard. Quite simply, the BIA is not entitled to state the correct legal standard but actually apply an incorrect standard. The BIA may not re-weigh the evidence submitted and substitute its own judgment for that of the IJ absent clear error.

The BIA erred as a matter of law by misapplying the appropriate standard of review when it: (1) all but ignored the significant testimony and documentary evidence that was found by the IJ to be candid, specific, plausible, consistent with supporting documentation, internally consistent, and unembellished; (2) did not find clearly erroneous the factual findings or credibility determinations of the IJ, and it adopted such findings as its own; (3) relied upon a hearsay document that was disregarded by the IJ and does not necessarily lead to an adverse inference about the nature of the petitioner’s marriage.