Mark Osei v. Eric Holder, Jr. , 462 F. App'x 559 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0189n.06
No. 10-4051
FILED
UNITED STATES COURT OF APPEALS Feb 16, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
MARK OSEI, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.*
PER CURIAM. Mark Osei petitions for review of an order by the Board of Immigration
Appeals (Board) affirming an immigration judge’s (IJ) order finding him removable and denying his
request for a good faith marriage waiver. See 8 U.S.C. § 1186a(c)(4)(B).
Osei, a native and citizen of Ghana, entered the United States in 2001 and was granted
conditional permanent resident status in 2003 based on his marriage to Joyce Williams, a United
States citizen. See 8 U.S.C. § 1186a(a). They subsequently divorced in 2005. Osei filed two
petitions to remove the conditions on his permanent resident status, seeking a waiver of the
requirement that he and Williams jointly file the petition. See 8 U.S.C. § 1186a(c)(4)(B). The
government denied both petitions, concluding that Osei had failed to establish that he entered into
his marriage in good faith.
*
The Honorable Karen K. Caldwell, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 10-4051
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The government initiated removal proceedings against Osei based on the termination of his
conditional permanent resident status. See 8 U.S.C. § 1227(a)(1)(D)(I). At a hearing before the IJ,
Osei conceded that he was removable, but renewed his request for a waiver of the joint filing
requirement. The IJ concluded that Osei was not credible and had failed to meet his burden of
establishing that he entered into his marriage in good faith. The IJ found that both Osei and his
supporting witness gave inconsistent, vague, and evasive testimony; that there was a lack of
documentation showing that Osei and Williams had established a life together; and that Osei had
been unable, in his interview with immigration authorities, to recall the names of Williams’s family
members, or the date of his wedding. Accordingly, the IJ denied Osei’s waiver request and ordered
him removed to Ghana. The Board dismissed Osei’s appeal.
An alien who gains conditional permanent resident status by marrying a United States citizen
is required to file a joint petition with his spouse to remove the conditional basis of his status. See
8 U.S.C. § 1186a(c)(1). A conditional permanent resident may seek a waiver of the joint filing
requirement, however, by showing that “the qualifying marriage was entered into in good faith by
the alien spouse, but the qualifying marriage has been terminated (other than through the death of
the spouse) and the alien was not at fault in failing to meet the [joint filing] requirements.” 8 U.S.C.
§ 1186a(c)(4)(B). The decision to grant a waiver under this provision is within “the Attorney
General’s discretion.” 8 U.S.C. § 1186a(c)(4). In reviewing a waiver application, “[t]he
determination of what evidence is credible and the weight to be given that evidence shall be within
the sole discretion of the Attorney General.” Id.
We have jurisdiction to review a final order of removal. See 8 U.S.C. § 1252(a)(5); Giraldo
v. Holder, 654 F.3d 609, 611 (6th Cir. 2011). That jurisdiction is limited, however, and does not
extend to review of a “decision or action of the Attorney General” that is specified by statute as being
discretionary. 8 U.S.C. § 1252(a)(2)(B)(ii); see Kucana v. Holder, 130 S. Ct. 827, 836-37 (2010);
Giraldo, 654 F.3d at 611-12. Although we retain jurisdiction to review constitutional claims and
questions of law, see 8 U.S.C. § 1252(a)(2)(D), and non-discretionary decisions underlying
determinations that are ultimately discretionary, see Abdulahad v. Holder, 581 F.3d 290, 297 (6th
No. 10-4051
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Cir. 2009), Osei does not raise these types of claims. Rather, he argues that the IJ and the Board
erred by deeming his testimony incredible, disregarding evidence concerning his marriage, and
failing to credit his explanations for certain discrepancies in the record. These arguments are
directed at the credibility determinations and the weight afforded to the evidence made by the IJ and
the Board. Because these determinations are explicitly committed to the discretion of the Attorney
General, we lack jurisdiction to review them. See 8 U.S.C. § 1252(a)(2)(B)(ii); Abdulahad, 581 F.3d
at 297.
Accordingly, we dismiss the petition for review.