Oleg Zhuiko v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3728
___________
OLEG ZHUIKO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-312-113)
Immigration Judge: Kuyomars Q. Golparvar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2020
Before: AMBRO, GREENAWAY, JR. and PORTER, Circuit Judges
(Opinion filed: February 8, 2022)
___________
OPINION *
___________
PER CURIAM
Oleg Zhuiko, a citizen of Kazakhstan, petitions for review of an order of the Board
of Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration
Judge’s (“IJ”) decision that denied his application for cancellation of removal and that
ordered his removal. We will dismiss the petition for review for lack of jurisdiction.
We generally have jurisdiction over a final order of removal, but we lack
jurisdiction to review “any judgment regarding the granting of relief under . . . § 1229b.”
8 U.S.C. § 1252(a)(2)(B). Despite that limitation, we retain jurisdiction to review
constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D).
Zhuiko, who is removable because he overstayed his visa, applied for cancellation
of removal under 8 U.S.C. § 1229b(b). To warrant relief, Zhuiko was required to show
that: (1) he had been physically present in the United States for at least ten years; (2) he
had been a “person of good moral character” during those ten years; (3) he had not been
convicted of certain crimes; and (4) his “removal would result in exceptional and
extremely unusual hardship” to his U.S.-citizen children. § 1229b(b)(1).
The BIA denied Zhuiko relief solely on the basis that he had not demonstrated that
he warranted cancellation of removal as a matter of discretion. A.R. 3. In his brief here,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Zhuiko argues that the IJ erred in determining that he lacked good moral character based
on a determination by United States Citizenship and Immigration Services that he was
involved in a fraudulent marriage, but we cannot consider that argument, as the BIA
declined to reach that issue. A.R. 3, n.1; see Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d
Cir. 2011), as amended (Jan. 13, 2012) (“[W]e may affirm the BIA’s decision only if we
find that its stated reasons are correct, as it was the BIA—not the IJ—that provided the
final and authoritative grounds invoked by the agency.”) (internal quotation marks and
citation omitted). Even if we construe his argument as challenging how the BIA weighed
the fraudulent marriage factor in determining that he did not merit cancellation of
removal, we lack jurisdiction to consider such an argument. See Jarbough v. Att’y Gen.,
483 F.3d 184, 189 (3d Cir. 2007) (noting that arguments that “the BIA incorrectly
weighed evidence, failed to consider evidence or improperly weighed equitable factors
are not questions of law under § 1252(a)(2)(D).”). Likewise, we lack jurisdiction to
consider whether the BIA gave inappropriate weight to Zhuiko’s DUI conviction.
Zhuiko also purports to argue that the BIA used the wrong standard of review in
considering the IJ’s decision, an argument we would have jurisdiction to consider. See
Patel v. Att’y Gen., 619 F.3d 230, 233 (3d Cir. 2010) (citing Pareja v. Att'y Gen., 615
F.3d 180, 187–88 (3d Cir. 2010)). But his arguments actually challenge certain of the
IJ’s factual findings, affirmed by the BIA, not the standard used. 1 Cf. id. (rejecting
1
To the extent that Zhuiko is challenging the BIA’s statement that he served a 70-day
term in jail for his DUI conviction, we lack jurisdiction to consider the argument for
another reason—Zhuiko failed to challenge in his appeal to the BIA the IJ’s statement
3
petitioner’s argument that the BIA applied the wrong standard of review when the
petitioner was actually challenging a discretionary decision).
For these reasons, the petition for review will be dismissed. 2
that he served a 70-day term. See 8 U.S.C. § 1252(d)(1).
2
Zhuiko’s motion for appointment of counsel is denied.
4