Macharia v. Garland ( 2022 )

Case: 21-60157 Document: 00516454126 Page: 1 Date Filed: 08/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2022
No. 21-60157 Lyle W. Cayce
Clerk
Allan Gatonye Macharia,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A203 049 750
Before King, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Allan Gatonye Macharia petitions for review from a decision of the
Board of Immigration Appeals dismissing his appeal and upholding the denial
of his application for a waiver of inadmissibility under § 212(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(i). For the following
reasons, we DENY the petition for review.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60157 Document: 00516454126 Page: 2 Date Filed: 08/31/2022
No. 21-60157
Allan Gatonye Macharia is a native and citizen of Kenya. He was
admitted to the United States on January 4, 2000, on a F-1 student visa to
attend college in Oklahoma. He testified that he stopped attending university
after approximately three semesters. In 2011, Macharia was issued a Notice
to Appear at removal proceedings for failure to comply with the conditions
of his admission. In response, he applied for asylum and other forms of relief
and was denied and ordered removed. Additionally, in 2011, Macharia’s first
wife filed a Form I-130 application to classify Macharia as her spouse for
immigration purposes, which corresponded with Macharia’s application for
permanent resident status. That application was denied over concerns about
the bona fides of the marriage.
Macharia’s current petition for review relates to an application for
permanent resident status based on his second marriage to Jean Pauline Njeri
Njeru. Based on this application, which was ultimately approved, the Board
of Immigration Appeals (“BIA”) approved his motion to reopen.
However, Macharia still faced a problem. At a hearing, Macharia
testified that he had misrepresented that he was authorized to work in the
United States. Therefore, before his application could be considered, he
needed to be granted a waiver under § 212(i) of the Immigration and
Naturalization Act, 8 U.S.C. § 1182(i). That provision allows the Attorney
General, in his discretion, to grant a waiver if “refusal of admission . . . would
result in extreme hardship to the citizen or lawful resident spouse.” 8 U.S.C.
§ 1182(i) (pertaining to admission of an immigrant otherwise inadmissible for
fraud or willful misrepresentation of material fact). The Immigration Judge
(“IJ”) considered his application, his supporting evidence, and the
testimony of both Macharia and his wife. Macharia argued that his wife would
suffer extreme hardship due to, among other factors, the family’s finances,
the fact that medical conditions of both her (uterine fibroids) and the
couple’s son (asthma) could not be adequately treated in Kenya, and the lack
2
Case: 21-60157 Document: 00516454126 Page: 3 Date Filed: 08/31/2022
No. 21-60157
of vocational opportunities in Kenya for either Macharia (who works in
information technology) or Njeru (who is a nurse).
On September 14, 2018, the IJ issued a written decision denying
Macharia’s waiver application. After “consider[ing] all the evidence in the
record,” the IJ found that Macharia “does not meet the hardship
requirement for purposes of 212(i).” The BIA dismissed Macharia’s appeal,
“adopt[ed] and affirm[ed] the [IJ’s] decision,” and found that the IJ
“appropriately evaluated the evidence of hardship and determined that
[Macharia] ha[d] not established extreme hardship to his spouse.” Macharia
timely filed the instant petition for review.
In general, in cases such as this, “[w]e review a final decision of the
BIA and not that of the IJ unless the latter ‘affects the BIA’s decision’ on
appeal.” Ramos Lara v. Lynch, 833 F.3d 556, 559 (5th Cir. 2016) (quoting Zhu
v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007)). Here, the BIA adopted and
affirmed the IJ’s opinion, so we consider that opinion to the extent that it
affected the BIA’s decision.
We must first determine whether we have jurisdiction to consider
Macharia’s arguments. “[W]e review de novo questions relating to our
jurisdiction to consider challenges to a final order of the BIA.” Tibakweitira
v. Wilkinson, 986 F.3d 905, 910 (5th Cir. 2021). In cases involving
discretionary decisions entrusted to the executive branch, “Congress has
sharply circumscribed judicial review.” Patel v. Garland, 142 S. Ct. 1614, 1619
(2022). By statute, “no court shall have jurisdiction to review . . . any
judgment regarding the granting of relief under section . . . 212(i),” the
statute which provides the waiver Macharia seeks. 8 U.S.C.
§ 1252(a)(2)(B)(i). The only exception can be found in 8 U.S.C.
§ 1252(a)(2)(D), which allows for “review of constitutional claims or
questions of law.”
3
Case: 21-60157 Document: 00516454126 Page: 4 Date Filed: 08/31/2022
No. 21-60157
Macharia asserts that such a question of law exists and that legal error
occurred because the IJ’s factual determinations regarding the existence of
extreme hardship were based on personal opinion or conjecture. However,
that challenge is ultimately a challenge to the IJ’s factual findings that
undergirded his decision that extreme hardship was not present. The
Supreme Court has recently made clear that we do not have jurisdiction to
review such factual findings. In Patel v. Garland, the Supreme Court held that
“[f]ederal courts lack jurisdiction to review facts found as part of
discretionary-relief proceedings.” 142 S. Ct. at 1627. That is precisely what
Macharia asks that we do. Macharia challenges the facts found by the district
court, specifically regarding the significance of the medical conditions
afflicting his wife and child and the ability for those conditions to be
adequately treated in Kenya. Under Patel, those factual findings are clearly
beyond our jurisdiction to review.
Nor can Macharia evade that conclusion by casting his challenge in
the form of a legal argument regarding the purported improper use of opinion
or conjecture. That framing is an attempt to present “‘an abuse of discretion
argument [cloaked] in [legal] garb,’ and as such, it must be rejected.”
Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir. 2006) (first alteration in
original) (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)).
At bottom, Macharia challenges the fact finding itself, and contests the facts
that the IJ (and, by extension, the BIA) found. We are without jurisdiction to
review those factual findings and so are without jurisdiction to consider
Macharia’s petition.
For the foregoing reasons, the petition for review is DENIED.
4