Elevnth Circuit Notes Split Re Scope of Jurisdictional Bar of 28 U.S.C. § 1252(a)(2)(B)(ii)

Per U.S. v. U.S. Atty. Gen., Slip Copy, 2006 WL 177583 (11th Cir. Jan. 25, 2006):

In his opening brief, Roos states the issue on appeal as follows: "Whether the [BIA] erred in summarily affirming the Immigration Judge's denial of [his] ... Petition to Remove Conditions on Residence ... and terminating his status as a lawful permanent resident where [he] was erroneously made to carry the burden of proof in review of his petition before the Immigration Judge...." Petitioner's Brief at 1. The Attorney General raised a jurisdictional challenge to Roos' appeal based on 8 U.S.C. § 1252(a)(2)(B)(ii).

Section 1252(a)(2)(B)(ii) deprives this Court of jurisdiction to review a "decision or action of the Attorney General ... the authority for which is specified under [8 U.S.C. § 1151-1378] to be in the discretion of the Attorney General...." 8 U.S.C. § 1252(a)(2)(B)(ii); see also Zafar v. U.S. Att'y Gen., 426 F.3d 1330, 1334 (11th Cir.2005). The decision to waive the joint petition requirement and remove the conditional basis of an alien's permanent resident status is vested in the Attorney General's discretion. See 8 U.S.C. § 1186a(c)(4) ("The Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) ....") (emphasis added). There is a circuit split as to whether the jurisdictional bar of § 1252(a)(2)(B)(ii) also precludes review of the threshold determination that the marriage was "entered into in good faith by the alien spouse." Compare Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) and Urena- Tavarez v. Ashcroft, 367 F.3d 154, 157--61 (3rd Cir.2004) with Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1141--43 (9th Cir.2005) and Cho v. Gonzales, 404 F.3d 96, 98--102 (1st Cir.2005).

We need not reach that issue, however, because in response to the Attorney General's jurisdictional argument, Roos made clear that he “is not seeking a review of a substantive issue (that the denial was based on the Immigration Judge's finding that Mr. Roos' marriage was not bona fide) that is within the discretion of the Attorney General but rather a legal issue (whether the burden of proof was incorrectly placed upon Mr. Roos).” Reply Brief at 5.