Daniel Urena-Tavarez v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-1013
DANIEL URENA-TAVAREZ,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(A44-445-342)
Argued January 15, 2004
Before: SLOVITER, RENDELL, and
ALDISERT, Circuit Judges
(Filed May 7, 2004)
Steven Vosbikian (Argued)
Vosbikian and Grady
Cherry Hill, NJ 08034
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Jeffrey S. Bucholtz (Argued)
Deputy Assistant Attorney General
Civil Division
David V. Bernal
Assistant Director
Office of Immigration Litigation
Russell J.E. Verby
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
In this Petition for Review from a
final order of removal entered by the
Board of Immigration Appeals (BIA) the
Petitioner, D a n i e l U r e n a -Tavare z
(Tavarez),1 argues that the decision of the
1 Tavarez’s name is spelled
differently throughout the record and the
briefs. He is referred to as “Tavares” in
the caption on all documents in the
Administrative Record, A.R. at 2; as
“Tavarez” on the title page of the
Petitioner’s Brief but as “Tavares”
throughout, Pet’r Br. at 2; and as
“Tavarez” in the Government’s Brief,
Gov’t Br. at 2. Because he signed and
printed his name as “Tavarez,” A.R. at
341, we will refer to him herein as

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Immigration Judge (IJ) was not based on
adequate findings of fact and that the BIA
did not properly evaluate the IJ’s findings
against himself and his two minor
children. In considering the arguments,
we find ourselves faced with a more
fundamental and more generally applicable
question – one going to the statutory
limitation on our review of matters
committed to the Attorney General’s
discretion.
I.
FACTS AND PROCEDURAL
BACKGROUND
Petitioner is a 61-year old native
and citizen of the Dominican Republic,
and his two children, Danny Zefar
Tavarez, age 15, and Daniela Zefar
Tavarez, age 14, are also natives and
citizens of the Dominican Republic. It is
unclear from the record when and in what
fashion Tavarez entered the United States,
but on September 3, 1992, he married
Eladia Pineiro,2 a citizen of the United
States, in Camden, New Jersey, after
dating her for about six or seven months.
Marriage of an alien to a United States
citizen entitles an alien to obtain
conditional permanent resident status,
Immigration and Nationality Act (INA) §
216(a)(1), 8 U.S.C. § 1186a(a)(1), and
Tavarez obtained such status on January 8,
1994 pursuant to an application filed by
Pineiro.3
Under the INA, the conditions on
such status can be removed if “the alien
spouse and the petitioning spouse (if not
deceased) jointly . . . submit to the
Attorney General . . . a petition which
requests the removal of such conditional
basis . . . .” INA § 216(c)(1)(A), 8 U.S.C.
§ 1186a(c)(1)(A).4 Pursuant thereto,
Tavarez and Pineiro filed a joint
application on December 1, 1995 to have
the conditions on Tavarez’s permanent
residence status removed, and an
immigration officer from the then-
Immigration and Naturalization Service
(INS) scheduled the interview for
“Tavarez.”
2 The Petitioner’s Reply Brief refers
to her as “Eladia Lopez,” Pet. Reply Br.
at 6; the Government’s Brief refers to her
as “Elidia Pineiro,” Gov’t Br. at 6; and
the Administrative Record refers to her
both as Eladia Pineiro” and “Elidia
Pineiro,” A.R. at 336. Because her
signature appears to be “Eladia Pineiro,”
A.R. at 337, we will refer to her as
“Eladia Pineiro” or as “Pineiro.”
3 The Government concedes that
the initial application, which is not part
of the Administrative Record, was filed
by Pineiro. Gov’t Br. at 6.
4 INA statutes will be cited both to
their codifications in the INA and in Title
8 of the United States Code the first time
they are referenced in this opinion.
Subsequent citations will be to Title 8 of
the United States Code.

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November 19, 1998.5 Shortly before the
interview with the immigration officer,
Tavarez and Pineiro quarreled over which
of them was responsible for payment of
Pineiro’s share of the income taxes.
Tavarez left the room to use the men’s
room. Pineiro was called into the
interview alone and told the immigration
officer that although she did not want to
harm Tavarez, “she didn’t live with
[Tavarez] and she was a friend.” A.R. at
134 (testimony of witness Carmen
Sanchez). The immigration officer
reassured her by stating that she was not
harming him. Pineiro then signed a sworn
statement before the immigration officer,
apparently prepared by the officer, stating
that she and Tavarez never lived together
as a married couple and that they did not
consummate the marriage. She also stated,
“I felt pity on him so I married him. I only
married her [sic] so she [sic] could obtain
her [sic] legal permanent residence.” A.R.
at 337.
When Tavarez came into the
interview room, the immigration officer
informed him that he was no longer
eligible for permanent resident adjustment
status because his wife withdrew the
petition. Tavarez “looked at [his wife] and
said, what you trying to do? You crazy.
Why you doing this? And all [Pineiro] did
was put her head down and didn’t answer
anything.” A.R. at 134 (testimony of
witness Carmen Sanchez). In the car ride
home, when Pineiro realized that Tavarez
would be deported, “she started crying and
then hugged him and said, you know,
sorry, I didn’t mean to do that. That’s not
what I wanted to do, I just wanted to be
out of the problem so I didn’t have to, you
know, pay the taxes . . . .” A.R. at 135-136
(testimony of witness Carmen Sanchez).
The INS District Director denied
Tavarez’s application to remove the
condition on his permanent resident status;
thus his conditional status was deemed to
have expired on January 8, 1996.
Thereafter, the INS began
proceedings to remove Tavarez and his
children by filing a Notice to Appear,
charging that his status as a conditional
permanent resident was terminated
pursuant to 8 U.S.C. § 1186a, and that he
obtained his immigrant status by fraud or
willful misrepresentation of a material
fact. The removal proceedings were
assigned to an IJ.
It was incontestable that Pineiro had
w i th d ra w n h e r s u p po r t , t h e r e by
eliminating any possibility of change of
Tavarez’s status on the basis of a joint
applic ation. Tav arez th en file d
applications for a waiver of the obligation
to file a joint application. Under the INA,
the Attorney General may waive the
obligation of a joint filing requirement for
an alien and his spouse if (1) the removal
would result in extreme hardship, (2) the
marriage terminated but was entered into
in good faith, or (3) the marriage was
entered into in good faith but that the
5 The testimony given before the
immigration officer is not in the
Administrative Record, but was reported
to the IJ by witnesses at the two hearings
held by him.

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citizen spouse either battered or subjected
the alien spouse to extreme cruelty. INA
§§ 216(c)(4)(A)-(C), 8 U.S .C. §§
1186a(c)(4)(A)-(C). Tavarez based his
application on all three statutory
exceptions.
Sometime thereafter, Pineiro
divorced Tavarez. The IJ summarily
denied the waivers based on extreme
hardship and battered spouse, stating that
there was no or almost no evidence for
either. The IJ then considered the
evidence from the hearing before him and
devoted a significant amount of his
decision to discussing the issue of whether
the marriage was entered into in good
faith. A waiver under INA § 216(c)(4)(B),
8 U.S.C. § 1186a(c)(4)(B), permits
removal of the conditions on an alien’s
permanent resident status without
requiring his spouse to petition jointly for
such removal if “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 . . . ).” Id.
The witnesses before the IJ
included Carmen Sanchez, who assisted
Tavarez and Pineiro in the preparation of
immigration documents, tax filings, and in
translation at the immigration interview.
At the December 7, 1999 hearing before
the IJ, Sanchez testified that in Tavarez’s
bathroom absence while waiting for the
immigration officer’s hearing, Pineiro told
her that unless Tavarez paid her share of
the taxes, she would “drop” his
immigration case. A.R. at 132. Sanchez
admitted that she never went to the
Tavarez’s house, but stated that they were
all from the same neighborhood and that
she “[saw] them all the time together.”
A.R. at 148. The IJ characterized Carmen
Sanchez as a “rather compelling” and
“honest witness” in whose testimony he
placed “a great deal of credence.” A.R. at
40. The other witness for Tavarez was
Danny Tavarez, Tavarez’s son, who
moved in with the couple in August 1997
after leaving the Dominican Republic, and
who testified that Pineiro prepared his
meals, picked out his school clothes, and
taught him how to do chores. A.R. at 262.
The IJ found this testimony to “be worthy
of some degree of belief.” A.R. at 40.
In addition, Tavarez testified as did
his daughter. The final witness, Miguel
Espinal, a friend who attended the
wedding, testified he would see the couple
together, took them to the bank and
shopping, and cooked with them at their
home. The IJ also considered Pineiro’s
sworn statement in reaching his decision
that the marriage was not undertaken in
good faith. Because the IJ concluded that
“this is a case of a friendship, of a
relationship of some sort but not a
marriage,” he denied the application for a
waiver of the joint filing requirement.
A.R. at 43. The IJ ruled that Tavarez is
removable under section 237(a)(1)(D)(i) of
the INA, 8 U.S.C. § 1227(a)(1)(D)(i),
because his status as a conditional
permanent resident was terminated.
Tavarez appealed to the BIA, which
affirmed the decision of the IJ, concluding,
“Although [Tavarez] submitted evidence
and testimony that his marriage was in

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‘good faith,’ in light of his former wife’s
statement, we defer to the Immigration
Judge’ [sic] finding in this case.” A.R. at
3. Tavarez then filed the pending Petition
for Review.
II.
DISCUSSION
A. 8 U.S.C. § 1252(a)(2)(B)(ii)
Shortly before oral argument before
this court, the Government sent the court a
letter, pursuant to Federal Rule of
Appellate Procedure 28(j), stating that
“[u]nder [8 U.S.C.] § 1252(a)(2)(B)(ii),
this Court lacks jurisdiction to review [the
denial of the waiver], because [8 U.S.C.] §
1186a(c)(4) confers to the Attorney
G e n e r a l ’ s ‘ s o l e d i s c r e t i o n ’ t h e
determination whether petitioner presented
evidence of sufficient credibility and
weight to satisfy that provision.” 28(j)
Letter from the Government, to Office of
the Clerk, at 2 (Jan. 13, 2004). We must
first consider this issue of jurisdiction, as
it “is axiomatic that this court has a special
obligation to satisfy itself of its own
jurisdiction. . . .” United States v. Touby,
909 F.2d 759, 763 (3d Cir. 1990) (internal
quotation and citation omitted). We
review jurisdictional questions de novo.
See Luu-Le v. INS, 224 F.3d 911, 914 (9th
Cir. 2000).
The Supreme Court has held that
only a showing of “clear and convincing
evidence” is sufficient to support a finding
that Congress intended to preclude judicial
review of an administrative action. Bd. of
Governors of the Fed. Reserve Sys. v.
MCorp Fin., Inc., 502 U.S. 32, 44 (1991).
This standard reinforces “the presumption
favoring judicial review of administrative
action.” Block v. Cmty. Nutrition Inst.,
467 U.S. 340, 349 (1984). Where
congressional intent to preclude judicial
review is “fairly discernible” in the detail
of the particular legislative scheme, this
presumption favoring judicial review does
not apply. Id. at 351; see also Ismailov v.
Reno, 263 F.3d 851, 854-55 (8th Cir.
2001).
The jurisdictional statute in
question states:
Notwithstanding any other
provision of law, no court
shall have jurisdiction to
review . . . any other
decision or action of the
A t t o r n e y G eneral th e
authority for which is
s p e c i f ie d u n d e r t h is
subchapter to be in the
discretion of the Attorney
General, other than the
granting of relief under
section 1158(a)[, which
governs asylum,] of this
title.6
6 We address in this opinion the
question of whether we can review
decisions under 8 U.S.C. § 1186a(c)(4)
“regarding discretionary relief by the
Attorney General and his designees,
which includes, inter alia, IJ, the BIA,
INS District Directors, and INS Regional
Commissioners.” Montero-Martinez v.
Ashcroft, 277 F.3d 1137, 1140 n.1 (9th

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8 U.S.C. § 1252(a)(2)(B).
The language “this subchapter” in
the foregoing provision refers to
Subchapter II in Chapter 12 of Title 8 of
the United States Code, and includes
section 1186a, the provision at issue here
that governs conditional permanent
resident status based on marriage to a
United States citizen.
Congressional intent to preclude
judicial review in situations outlined in
this provision is not merely “fairly
discernible,” it is express and manifest.
This jurisdiction-stripping provision is part
of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
(IIRIRA). The Supreme Court has stated
that “many provisions of IIRIRA are
aimed at protecting the Executive’s
discretion from the courts – indeed, that
can fairly be said to be the theme of the
legislation. See, e.g., 8 U.S.C. §
1252(a)(2)(A) (limiting review of any
claim arising from the inspection of aliens
arriving in the United States); §
1252(a)(2)(B) (barring review of denials
of discretionary relief authorized by
v a r i o u s sta tu to ry provisions); §
1252(a)(2)(C) (barring review of final
removal orders against criminal aliens); §
1252(b)(4)(D) (limiting review of asylum
determinations for resident aliens),” Reno
v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 486-87 (1999) (discussing
the scope of 8 U.S.C. § 1252(g)).7
T h e s c o p e o f s e c t i o n
1252(a)(2)(B)(ii) has been the subject of
some disagreement among the courts of
appeals. Section 1252 is captioned
“Judicial review of orders of removal.”
The courts have had to decide whether the
provision strips courts of appeals from
reviewing all discretionary decisions or
Cir. 2002). Because in the instant case
the BIA deferred to the findings of the IJ
on the relevant “good faith” issue, we
review the opinion of the IJ, Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.
2001), and will use “IJ” or “BIA” as a
shorthand for the Attorney General and
his designees.
7 As the Court noted, there are many
jurisdiction-stripping provisions in
IIRIRA, some of which appear at first
glance to foreclose review in similar
kinds of situations. Among the
provisions not mentioned by the Supreme
Court: “For example, section 1252(e)
addresses limitations on judicial review
of exclusion orders, including habeas
review and collateral constitutional
challenges to the validity of the system;
section 1252(f) provides limitations on
injunctive relief available in courts other
than the Supreme Court; and, section
1252(g) bars review of the Attorney
General’s decision to commence
proceedings, adjudicate cases, or execute
removal orders.” CDI Info. Servs., Inc.
v. Reno, 278 F.3d 616, 620 (6th Cir.
2002). In this opinion, we focus our
inquiry upon the scope of 8 U.S.C. §
1252(a)(2)(B)(ii) and its applicability to
8 U.S.C. § 1186a(c)(4), and express no
position about the other provisions.

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only those made in the context of removal
proceedings. Three courts of appeals have
held that section 1252(a)(2)(B)(ii) applies
to all discretionary decisions enumerated
in the relevant subchapter of Title 8, which
includes sections 1151-1378, regardless of
the context in which the decisions were
made. See Samirah v. O’Connell, 335
F.3d 545, 549 (7th Cir. 2003) (revocation
of parole); CDI Info. Servs., 278 F.3d at
620 (denial of extension of non-immigrant
visa); Van Dinh v. Reno, 197 F.3d 427,
434 (10th Cir. 1999) (transfer of aliens
from one facility to another).
The Court of Appeals of the Ninth
Circuit, on the other hand, disagrees. In
Spencer Enterprises, Inc. v. United States,
345 F.3d 683 (9th Cir. 2003), the court
held that § 1252(a)(2)(B)(ii) does not bar
review of the decision to issue an
immigrant investor visa pursuant to §
1153(b)(5). Although the Spencer court
stated carefully that it “need not decide
whether § 1252(a)(2)(B)(ii) applies outside
the context of removal proceedings,” id. at
692, it concluded that because section
1 2 5 2 ( a ) ( 2 ) ( B ) ( i i ) r e f e r s n o t t o
“discretionary decisions” but to “acts the
authority for which is specified under the
INA to be discretionary,” the provision
precludes review on ly o f those
discretionary decisions for which there are
no guiding legal standards. Id. at 689
(emphasis in original). We need not reach
that issue in this case nor do we reach the
issue of whether section 1252(a)(2)(B)(ii)
covers discretionary decisions made
outside the context of removal proceedings
because in this case, the IJ’s finding that
Tavarez was ineligible for the section
1186a(c)(4)(B) waiver resulted in a final
order of removal.
B. 8 U.S.C. § 1186a(c)(4)
Section 1186a(c)(4) states:
(4) Hardship waiver
The Attorney General, in the
A t t o r n e y G e n e r a l ’ s
discretion, may remove the
conditional basis of the
permanent resident status
for an alien who fails to
meet the requirements of
paragraph (1) if the alien
demonstrates that— . . . .
(B) 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
t h e r e q u i r e m e n t s o f
paragraph (1), . . .
. . . . In acting on
applications under this
paragraph, the Attorney
General shall consider any
credible evidence relevant to
the application. The
determination of w hat
evidence is credible and the
weight to be given that

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evidence shall be within the
sole discretion of the
Attorney General.
8 U.S.C. § 1186a(c)(4) (emphases added).
The first paragraph of section
1186a(c) explicitly assigns to the Attorney
General the discretion to “remove the
conditional basis of the permanent resident
status for an alien” who demonstrates one
of the three qualifications for waivers that
follow in the ensuing paragraphs. This
statute thus falls within even the more
narrow reading put forth by the Spencer
court – that determinations in which “the
right or power to act is entirely within [the
Attorney General’s] judgmen t or
conscience . . . [and] are matters of pure
discretion, rather than discretion guided by
legal standards,” are those exempted from
j u d i c i a l r e v i e w b y s e c t i o n
1252(a)(2)(B)(ii). Spencer Enters., 345
F.3d at 690. And unlike the provision the
Ninth Circuit exem pted from the
jurisdiction-stripping effect of section
1252(a)(2)(B)(ii), section 1186a(c) states
that the Attorney General may grant such
a waiver, not that the Attorney General
shall grant such a waiver, making clear
that the waiver may not be granted even if
the legal requirements of the three waiver
qualifications are met. Compare 8 U.S.C.
§ 1186a(c), with 8 U.S.C. § 1153(b)(5).
Section 1252(a)(2)(B)(ii) clearly precludes
judicial review of decisions under section
1186a(c)(4).
Section 1186a(c)(4) provides the
Attorney General’s discretionary decision
with another layer of protection from
review. Not only may the Attorney
General make the decision in her or his
discretion, but the Attorney General has
the “sole discretion” to decide “what
evidence is credible and the weight to be
given that evidence.” § 1186a(c)(4). This
is particularly relevant here because the
thrust of Tavarez’s argument is that “the
Board failed to consider [his] objection to
the manner in which the Immigration
Judge evaluated the evidence.” Pet. Suppl.
Br. at 3-4. The IJ explicitly balanced the
considerations on the record, and because
that balance in this case is dispositive and
impervious to review, we set forth his
statements in full.
After discussion of the “best
evidence for a waiver,” the testimony of
Sanchez and Danny Tavarez, the IJ stated:
On the minus side of the
ledger is the fact that there’s
virtually no documentation
at all in this case to establish
that this is a legitimate
marriage. There’s one
savings account with no
activity. There’s no
checking account. There are
no joint leases, the property
that the respondent bought,
he apparently bought in his
own name, so his wife’s not
on that deed. There are no
affidav its from anyone
familiar with the respondent
or his wife. There’s no
evidence of co-mingling of
assets. There are a few tax
returns, which do suggest

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some evidence of life
together as husband and
wife, but for the most part,
cons idering that these
people were married from
1992 until only about a year
ago, a period of about eight
years, there’s nothing here
to speak of and it’s
remarkable that there is so
little in this file to show that
these two people lived
together.
A.R. at 40. The IJ continued:
The Court believe
[sic] that the respondent’s
then-wife, Eladia, probably
was around the house,
probably was in the house at
some point. She may have
even lived there. The Court
questions however, whether
or not she was ever what
one would call a wife, what
one would think of as a
partner. The Court also
believes that her statement,
which is part of Exhibit 3, is
probably true in the sense
that it says that she married
him so that he could obtain
his permanent residence and
she wishes to withdraw her
application but she also
hopes that no harm comes to
him and that he’s allowed to
stay in the country. That’s
not an unreasonable position
for a person to have. There
are s o m e t i m e s m ix e d
motives behind marriages.
There are different feelings.
Apparently, there was a
f e e l in g o f a f f e c t io n ,
friendship and concern for
him but it appears also that
she would not have married
him but for the fact that he
needed a green card and she
does not allege in here or
admit or concede that she
ever received any money for
marrying him. Apparently
the Service never pressed
her to make such a
statement because she
doesn’t make one. So it
appears that there was some
sort of relationship, some
sort of friendship but it also
appears that it wasn’t really
a marriage. At least not
what we would consider to
be a marriage.
A.R. at 41.
It follows that whether we agree
with the IJ’s characterization of the
underlying evidence as credible vel non
which led him to conclude that this was
not a good faith marriage, A.R. at 40, is
irrelevant, as the statute itself gives the
Attorney General (acting through his
designee) the sole discretion to weigh the
evidence. Courts have been zealous in
their efforts to pressure our jurisdiction to
review administrative decisions, but that
effort must fail under the overarching
reality that it is Congress that has the

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power to decide the jurisdiction of the
inferior federal courts. And IIRIRA makes
plain our inability to review precisely the
issue presented here, that is, the relative
weight of the evidence.
Tavarez argues that “[a] strikingly
similar issue of reviewability was
addressed in the case of Nyonzele v. INS,
83 F.3d 975 [(8th Cir. 1996)].” Pet. Suppl.
Br. at 2. The Nyonzele court noted that
the hardship waiver at issue there “was
initially denied by the district director,”
and that the “district director’s denial of a
hardship waiver is not itself appealable.”
Id. at 979. It continued, “Because the BIA
reviewed the waiver claim during the
deportation proceedings, that decision is
reviewable in this court.” Id. It also noted
that because “[e]ach of [the requests for
relief at issue] is a matter statutorily vested
in the discretion of the Attorney General,”
its review was “limited to determining
whether there has been an abuse of
discretion.” Id. Petitioner thus urges us to
hear the merits of this appeal under an
abuse of discretion standard.
But Nyonzele was decided before
the enactment of IIRIRA. When Nyonzele
was decided, the relevant jurisdictional
statute was 8 U.S.C. § 1105a (1994),
which gave the courts of appeals
jurisdiction to review all final orders of
deportation. Jurisdiction then was more
broad, and as the Eighth Circuit noted, its
“review of final orders of deportation
pursuant to 8 U.S.C. § 1105a(a) include[d]
‘all determinations made during and
incident to the administrative proceeding .
. . and reviewable together by the [BIA],’
Foti v. INS, 375 U.S. 217, 229 (1963), and
‘all matters on which the validity of the
final order is contingent,’ INS v. Chadha,
462 U.S. 919, 938 (1983) (internal
quotations omitted).” Nyonzele, 83 F.3d
a t 9 7 9 . I n c o n t r a s t , s e c t i o n
1252(a)(2)(B)(ii) explicitly disallows
review of discretionary decisions in the
context of removal proceedings. The
jurisdictional holding of Nyonzele is no
longer consistent with the passage of
IIRIRA.
III.
CONCLUSION
We hold that 8 U.S.C. §
1252(a)(2)(B)(ii) bars us from reviewing
the discretionary denial of waivers under 8
U.S.C. § 1186a(c)(4). The statutory
provisions that the Attorney General “in
[his] discretion, may” remove the
condition on permanent residence without
a joint application, and that the Attorney
General has the “sole discretion” to weigh
the evidence and decide which evidence is
credible, compel our conclusion. 8 U.S.C.
§ 1186a(c)(4) (emphasis added). We will
therefore deny the petition for review.

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