BONILLA-CRUZ v. HOLDER, 361 Fed.Appx. 204 (2nd Cir. 2010)

No. 09-1947-ag.United States Court of Appeals, Second Circuit.
January 19, 2010.

Petition for review of an April 16, 2009 decision of the Board of Immigration Appeals (“BIA”).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,AND DECREED that the petition for review is DENIED.

Glenn L. Formica, New Haven, CT, for Petitioner.

Michael Heyse (Tony West, Assistant Attorney General, Civil Division, Nancy Friedman, Senior Litigation Counsel, Virginia Lum, on the brief) Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

PRESENT: AMALYA L. KEARSE, JOSÉ A. CABRANES, Circuit Judges, RICHARD K. EATON, Judge.[*]

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AMENDED SUMMARY ORDER
Petitioner Marcelino Bonilla-Cruz (“petitioner”), a citizen of Mexico, petitions for review of the April 16, 2009 BIA order dismissing his appeal from the February 29, 2008 decision of Immigration Judge (“IJ”) Michael W. Straus, affirming the denial of petitioner’s application for a waiver under section 216(c)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(B), and ordering petitioner removed to Mexico. Petitioner’s only challenge to the order of removal is that the IJ and BIA erred in rejecting his request for a § 1186a waiver regarding his attempt to prove that he was in good faith married to a United States citizen. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

Petitioner argues that we have subject-matter jurisdiction to review whether the IJ and BIA erred in denying petitioner’s application for waiver upon finding that petitioner failed to meet his burden to establish that he entered into his marriage in good faith. However, we recently held i Contreras-Salinas v. Holder, 585 F.3d 710 (2d Cir. 2009), that in circumstances similar to those here we lacked jurisdiction to consider a challenge to the BIA’s denial of an application for a good faith marriage waiver. Under 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction to review “any other decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” The language “this subchapter” refers to Subchapter II in Chapter 12 of Title 8 of the United States Code and includes § 1186a, which is the provision at issue here. That section governs conditional permanent resident status based on marriage to a United States citizen.[1]

Section 1252(a)(2)(D) of Title 8 of the U.S. Code restored jurisdiction over such petitions only to the extent that the petition presents “constitutional claims or questions of law.” In the instant case, petitioner claims only that the IJ’s factual determinations were flawed and that the IJ erred by “overreaching.” Even if petitioner framed these claims as legal or constitutional errors, “the petitioner cannot . . . secure review by using the rhetoric of a `constitutional claim’ or `question of law’ to disguise what is essentially a quarrel about fact-finding or the exercise of discretion.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330 (2d Cir. 2006).

We have considered all of petitioner’s challenges to the removal order and have found them to be without merit. For the foregoing reasons, the petition for review is DENIED.

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