Clarke v. Sessions , 697 F. App'x 61 ( 2017 )

16-2487
Clarke v. Sessions
BIA
Straus, IJ
A096 638 288
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 8th day
4 of September, two thousand seventeen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 SUSAN L. CARNEY,
9 Circuit Judges,
10 TIMOTHY C. STANCEU,
11 Chief Judge, U.S. Court of Int’l Trade.
12 _____________________________________
13
14 MCCARTY CLARKE,
15 Petitioner,
16
17 v. No. 16-2487
18
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory C. Osakwe, Hartford, CT.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Greg Mack, Senior
28 Litigation Counsel; Stefanie Notarino
29 Hennes, Trial Attorney, Office of
30 Immigration Litigation, United States
31 Department of Justice, Washington, DC.
 Chief Judge Timothy C. Stanceu, of the United States Court of
International Trade, sitting by designation.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DISMISSED.
4 Petitioner McCarty Clarke, a native and citizen of Jamaica,
5 seeks review of a June 29, 2016 decision of the BIA affirming a
6 November 10, 2014 decision of an Immigration Judge (“IJ”) ordering
7 Clarke’s removal to Jamaica. In re McCarty Clarke, No. A096 638 288
8 (B.I.A. June 29, 2016), aff’g No. A096 638 288 (Immig. Ct. Hartford
9 Nov. 10, 2014). We have reviewed the IJ’s decision as supplemented
10 by the BIA. See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).
11 We assume the parties’ familiarity with the underlying facts and
12 procedural history in this case.
13 Clarke obtained conditional residency based on his marriage to
14 a U.S. citizen, whom he later divorced. Following the divorce, he
15 sought to remove the condition on his residency. To remove the
16 condition without filing a petition jointly with a U.S. citizen
17 spouse, Clarke requested a waiver of the joint petition requirement
18 on the ground that “the qualifying marriage was entered into in good
19 faith” but had since terminated. 8 U.S.C. § 1186a(c)(4)(B); see
20 also id. § 1186a(c)(1)(A). The IJ and BIA determined that Clarke
21 failed to demonstrate that the marriage was entered into in good
22 faith, and denied his waiver request.
23 Because the waiver Clarke sought is granted on a discretionary
24 basis, our review is limited to constitutional claims and questions
2
1 of law. See 8 U.S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii),
2 1252(a)(2)(D); Contreras-Salinas v. Holder, 585 F.3d 710, 713-15 (2d
3 Cir. 2009). Clarke challenges the weight the agency afforded his
4 evidence. This aspect of the agency’s decision is beyond our
5 jurisdiction to review. Contreras-Salinas, 585 F.3d at 713-14; see
6 also Boluk v. Holder, 642 F.3d 297, 304 (2d Cir. 2011) (“The amount
7 of weight to be accorded any particular fact raises no question of
8 law and is accordingly not within this Court’s jurisdiction to review
9 . . . .”).1
10 Clarke’s argument that the agency should not have denied the
11 waiver based on his failure to provide his daughter’s birth
12 certificate is misplaced. As the BIA explained in its decision, the
13 IJ did not rely on Clarke’s initial failure to produce the requested
14 documentation, and instead denied the waiver on the ground that
15 Clarke failed to establish that he entered into his marriage in good
16 faith.
1
We note that Congress has amended 8 U.S.C. § 1186a(c)(4) twice since
our decision in Contreras-Salinas was issued. See Amendment—Immigration
and Nationality Act, Pub. L. 112-58, § 1, 125 Stat. 747, 747 (2011); Violence
Against Women Reauthorization Act of 2013, Pub. L. 113-4, § 806, 127 Stat.
54, 112. When Contreras-Salinas was decided, § 1186a(c)(4) expressly gave
the Attorney General discretion to grant waivers of the joint petition
requirement. See 585 F.3d at 713. The two recent amendments replaced
“Attorney General” with “Secretary of Homeland Security” throughout
§ 1186a, including at § 1186a(c)(4). § 1, 125 Stat. at 747 (enacting
“Conforming Amendments”); § 806, 127 Stat. at 112 (making “Technical
Corrections”). Our Court has not yet determined the effect, if any, of
these amendments on our jurisdiction over challenges to denials of joint
petition waivers. We think it unnecessary in this case to take up that
issue, which Clarke’s brief does not address. Even if we had jurisdiction
to review Clarke’s challenge, we would conclude that substantial evidence
in the record supports the finding by the IJ and BIA that Clarke failed
to establish that he entered into the marriage in good faith. See Nguyen
v. Holder, 743 F.3d 311, 314 (2d Cir. 2014).
3
1 Accordingly, for the foregoing reasons, the petition for review
2 is DISMISSED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk of Court
4