Newell v. Holder , 579 F. App'x 53 ( 2014 )

13-2750
Newell v. Holder
BIA
Cheng, IJ
A096 536 325
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of October, two thousand fourteen.
PRESENT:
BARRINGTON D. PARKER,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
DWIGHT ALFANCO NEWELL,
Petitioner,
v. 13-2750
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
_________________________________________
FOR PETITIONER: PARKER WAGGAMAN, Law Offices of Parker
Waggaman, P.C., Woodside, New York.
FOR RESPONDENT: JOSEPH A. O’CONNELL, Attorney (Stuart F. Delery,
Assistant Attorney General and Cindy S. Ferrier,
Assistant Director, on the brief), Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED.
Petitioner Dwight Newell, a native and citizen of Jamaica, seeks review of a June
19, 2013, order of the BIA, affirming the June 27, 2012, decision of an Immigration
Judge (“IJ”), which denied Newell’s request for a good-faith marriage waiver and ordered
him removed. In re Dwight Newell, No. A096 536 325 (B.I.A. June 19, 2013), aff’g No.
A096 536 325 (Immig. Ct. N.Y.C. June 27, 2012). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Newell argues that the IJ and the BIA erred in finding him not credible and in
concluding that he failed to establish a bona fide marriage under 8 U.S.C.
§ 1186a(c)(4)(B). Both of his challenges are beyond the scope of our jurisdiction.
Under 8 U.S.C. § 1252(a)(2)(B)(ii), this Court lacks jurisdiction to review any
decision or action committed to the discretion of the Attorney General under subchapter
II of Chapter 12 of Title 8 of the U.S. Code. Contreras-Salinas v. Holder, 585 F.3d 710,
713 (2d Cir. 2009). That subchapter includes the good-faith marriage waiver.
Contreras-Salinas, 585 F.3d at 713; 8 U.S.C. § 1186a(c)(4). Despite this
jurisdiction-stripping provision, Article III courts retain jurisdiction over “constitutional
claims or questions of law raised upon a petition for review,” including the legal standard
to be used in evaluating a good-faith marriage. 8 U.S.C. § 1252(a)(2)(D); see also Boluk
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v. Holder, 642 F.3d 297, 303 (2d Cir. 2011). However, the BIA’s findings regarding
“what evidence is credible and the weight to be given that evidence” are purely factual
matters. Contreras-Salinas, 585 F.3d at 713. Consequently, we lack jurisdiction to
review the BIA’s findings regarding the credibility or sufficiency of a petitioner’s
evidence showing a bona fide marriage under 8 U.S.C. § 1186a(c)(4). Id. at 714; Boluk,
642 F.3d at 304.
In this case, Newell’s petition challenges the precise types of evidentiary and
credibility determinations entrusted to the sole discretion of the Attorney General. While
Newell claims that the agency’s credibility determination is a “mixed question” of law
and fact, it is not. As noted above, the credibility of testifying witnesses is exclusively a
factual question for the IJ and the BIA. See Contreras-Salinas, 585 F.3d at 713-14.
Similarly, Newell’s claim that the agency erred in emphasizing his lack of credibility in
reaching its ruling, rather than addressing the “relevant question” of whether his marriage
was bona fide, comes down to a dispute about the relative weight it accorded his
evidence. Noting that Newell presented only sparse documentary evidence of his
domestic life with his ex-wife, the IJ and the BIA concluded that the inconsistencies in his
personal testimony undermined his showing of a bona fide marriage. While couched as a
quarrel over legal standards, Newell’s objection thus quibbles over the “weight to be
accorded any particular fact” – in this case, his testimony. Boluk, 642 F.3d at 304. Such
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objections “raise[] no question of law and [are] accordingly not within this Court’s
jurisdiction.” Id.
For the foregoing reasons, the petition for review is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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