Zia v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZOHAIB ZIA, No. 21-1325

Agency No.

Petitioner,

A063-608-680

v. OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 20, 2023

Submission Vacated July 21, 2023

Resubmitted August 26, 2024

San Francisco, California

Filed August 26, 2024

Before: Mary M. Schroeder, Consuelo M. Callahan, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Callahan

2 ZIA V. GARLAND

SUMMARY *

Immigration

Dismissing in part and denying in part Zohaib Zia’s

petition for review of a decision of the Board of Immigration

Appeals, the panel held that: (1) the court lacked jurisdiction

to review the adverse credibility finding underlying the

denial of Zia’s good faith marriage waiver; and (2) the court

had limited jurisdiction to review the good faith marriage

finding as a mixed question of fact and law, but there was no

error here.

Zia was a conditional permanent resident based on

marriage. Due to divorce, he was unable to file a joint

petition with his spouse to remove the conditions on his

status. He sought a waiver of that requirement under 8

U.S.C. § 1186a(c)(4)(B), which requires a showing that the

marriage was entered into in good faith.

The panel explained that 8 U.S.C. § 1252(a)(2)(B)(i)

bars judicial review of any “judgment regarding the granting

of relief” under certain enumerated sections, while

§ 1252(a)(2)(B)(ii) bars review of “any other decision or

action . . . specified under this subchapter to be in the

discretion of . . . the Secretary of Homeland Security.” The

good faith marriage waiver at § 1186a(c)(4)(B) is contained

in that “subchapter,” and is left to the discretion of the

Secretary of Homeland Security.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ZIA V. GARLAND 3

The panel held that the good faith marriage waiver and

any underlying eligibility determinations fall within the

scope of the jurisdiction-stripping provision in

§ 1252(a)(2)(B)(ii). Considering Patel v. Garland, 596 U.S.

328 (2022), which held that § 1252(a)(2)(B)(i) bars review

of “any judgment regarding” the granting of relief under the

enumerated provisions, the panel held that Patel’s

interpretation equally applies to subsection (ii).

Relying on Wilkinson v. Garland, 601 U.S. 209 (2024),

which held that the application of the statutory standard for

hardship to established facts presents a mixed question that

falls within the “Limited Review Provision” of 8 U.S.C.

§ 1252(a)(2)(D), the panel held that the good faith marriage

finding similarly is a mixed question of fact and law this

court can review under the Limited Review Provision.

However, under Patel and Wilkinson, the panel

concluded that the court lacked jurisdiction to address Zia’s

factual challenge to the adverse credibility

finding. Although the court could consider Zia’s challenge

to the finding that his marriage was not entered into in good

faith, the panel found the credibility determination fatal to

his claim. Reviewing this primarily factual mixed question

under a deferential standard, the panel concluded that Zia’s

testimony was of little weight, and the remaining evidence

did not compel reversal of the BIA’s conclusion.

The panel also rejected, for lack of prejudice, Zia’s

argument that the agency violated his due process rights by

failing to provide a complete hearing transcript.

4 ZIA V. GARLAND

COUNSEL

Nathaniel L. Nicoll (argued), San Francisco, California;

Joseph J. Siguenza, Law Offices of Ashwani K. Bhakri,

Burlingame, California; for Petitioner.

Jonathan A. Robbins (argued), Trial Attorney, Commercial

Litigation Branch; Patricia Bruckner, Trial Attorney; W.

Manning Evans, Senior Litigation Counsel; Office of

Immigration Litigation; Brian M. Boynton, Principal Deputy

Assistant Attorney General; Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

OPINION

CALLAHAN, Circuit Judge:

Petitioner Zohaib Zia, a citizen of Pakistan, came to the

United States as a conditional permanent resident based on

his marriage to a U.S. citizen. See 8 U.S.C. § 1186a(a)(1),

(d)(2). As the two-year end-date of Zia’s conditional

residency approached, Zia petitioned to remove the

conditional basis of his resident status. See id.

§ 1186a(d)(2), (c)(1). Because his marriage ended in

divorce, Zia was unable to file a joint petition with his spouse

that is usually required. Instead, Zia petitioned for a

hardship waiver to the joint filing requirement based on his

marriage having been entered into in “good faith.” Id.

§ 1186a(c)(4)(B). Zia’s petition was denied first by U.S.

Citizenship and Immigration Services and then by the Board

of Immigration Appeals (“BIA”). He now asks this court to

review the BIA’s order.

ZIA V. GARLAND 5

This case requires us to first evaluate how recent

direction from the Supreme Court in Patel v. Garland, 596

U.S. 328 (2022), and Wilkinson v. Garland, 601 U.S. 209

(2024), impacts the scope of our jurisdiction to review a

good faith marriage determination by the BIA. After doing

so, we hold that we lack the authority to entertain Zia’s

challenge to the adverse credibility finding and decline to

overturn the BIA’s decision as to the remaining arguments

raised in his petition. We thus dismiss in part and deny in

part Zia’s petition for review.

I.

Zia is a citizen and native of Pakistan. In 2012, while in

Pakistan, Zia married a United States citizen, Anum Haq.

Haq returned to the United States shortly after the wedding.

In May 2014, Zia was granted a two-year conditional

permanent resident status based on his marriage to Haq and

moved to live with her in Chicago. See 8 U.S.C.

§ 1186a(a)(1), (d)(2). Their reunion was short-lived,

however, as they separated a month later. Haq filed for

divorce in July 2014.

In May 2016, Zia filed a petition under 8 U.S.C. § 1186a

to remove the conditional basis of his permanent resident

status. Under § 1186a, an alien who previously obtained

conditional permanent resident status on account of his

marriage to a U.S. citizen can petition for removal of the

conditional basis by filing a joint petition with the U.S.

citizen spouse. 8 U.S.C. § 1186a(c)(1). If a joint petition is

no longer possible because the marriage has terminated, the

alien can seek a “hardship waiver” of the joint filing

requirement. Id. § 1186a(c)(4)(B). To qualify for such a

waiver, the alien must show the marriage was entered into in

“good faith.” Id. Because he was unable to file a joint

6 ZIA V. GARLAND

petition, Zia sought a waiver, stating that his marriage was

entered into in good faith even though it ended in divorce.

U.S. Citizenship and Immigration Services (“USCIS”)

found that Zia and Haq had not entered into their marriage

in good faith, and thus he was not eligible for the waiver.

USCIS subsequently terminated Zia’s conditional

permanent resident status.

In 2018, the Department of Homeland Security issued

Zia a notice to appear, charging him as removable pursuant

to 8 U.S.C. § 1227(a)(1)(D)(i) as an alien whose conditional

lawful resident status under § 1186a had been terminated.

As part of his removal proceeding, Zia renewed his petition

to remove the conditions on his permanent resident status

before an Immigration Judge (“IJ”).

The IJ denied Zia’s request, finding that Zia did not enter

into his marriage with Haq in good faith. The IJ determined

that Zia was not credible, and that Zia’s testimony was

“extremely vague regarding the circumstances surrounding

his marriage.” Finding the remaining evidence in the record

insufficient to carry Zia’s burden of showing that he entered

into the marriage in good faith, the IJ denied his request.

Zia appealed to the BIA, first asserting a due process

violation based on an inadequate hearing transcription with

“indiscernible” notations (i.e., entries where the transcript

had not captured what was said at the hearing). He argued

the transcript was insufficient for him to review the IJ’s

findings and that he was prejudiced because there was not a

complete record of his testimony in violation of 8 C.F.R.

§ 1240.9, which requires a verbatim record of the hearing.

Zia also challenged the IJ’s adverse credibility finding and

denial of his petition for a good faith marriage waiver.

ZIA V. GARLAND 7

The BIA held that any errors in the transcript “d[id] not

prevent meaningful review as later testimony often clarified

earlier ‘indiscernible’ entries.” The BIA also concluded Zia

had not shown prejudice affecting his ability to appeal. The

BIA then affirmed the IJ’s adverse credibility determination,

finding it was based on “specific, cogent reasons,” and was

not clearly erroneous. Finally, the BIA agreed with the IJ

that the remaining documentary evidence provided by Zia

was insufficient to show that he entered the marriage “with

the intent to establish a life together” with Haq.

Zia timely petitioned for review, arguing the BIA erred

on all counts.

II.

In the immigration context, Congress has “sharply

circumscribed” the scope of judicial review of certain BIA

decisions. Patel v. Garland, 596 U.S. 328, 332 (2022). 8

U.S.C. § 1252 generally grants federal courts the power to

review final orders of removal. However, in

§ 1252(a)(2)(B), passed as part of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) and titled “Denials of discretionary relief,”

Congress stripped courts of jurisdiction over two categories

of removal orders. First, § 1252(a)(2)(B)(i) bars judicial

review of any BIA “judgment regarding the granting of

relief” under certain enumerated sections. Second,

§ 1252(a)(2)(B)(ii) prevents our review of “any other

decision or action of the Attorney General or Secretary of

Homeland Security the authority for which is specified under

this subchapter to be in the discretion of the Attorney

General or the Secretary of Homeland Security.”

That was not the last word, however, as nine years after

IIRIRA, Congress passed the REAL ID Act of 2005 enacting

8 ZIA V. GARLAND

§ 1252(a)(2)(D)—the so-called “Limited Review

Provision.” See Guerro-Lasprilla v. Barr, 589 U.S. 221, 225

(2020). This section preserves the jurisdiction of federal

courts to review “constitutional claims or questions of law.”

Questions of law include mixed questions of law and fact.

Id.

Section 1186a(c)(4) is contained in the “subchapter”

referenced in § 1252(a)(2)(B)(ii). It states that the decision

to remove the conditional basis of a permanent resident

based on a good faith marriage waiver is a decision left to

“the Secretary [of Homeland Security]’s discretion.” 8

U.S.C. § 1186a(c)(4). Additionally, it provides that “[t]he

determination of what evidence is credible and the weight to

be given that evidence shall be within the sole discretion of

the Secretary.” Id.

Under our precedent, good faith marriage waivers have

been subject to judicial review. See Oropeza-Wong v.

Gonzales, 406 F.3d 1135, 1142 (9th Cir. 2005). The

government contends that this precedent is clearly

irreconcilable with the Supreme Court’s recent decisions in

Patel v. Garland, 596 U.S. 328 (2022) and Wilkinson v.

Garland, 601 U.S. 209 (2024), and argues we lack

jurisdiction to review Zia’s petition. Although a three-judge

panel is typically bound by prior circuit law, we may

“reexamine normally controlling circuit precedent in the

face of an intervening United States Supreme Court

decision.” Miller v. Gammie, 335 F.3d 889, 892 (9th Cir.

2003) (en banc). We do so here, and for the reasons

articulated below, we agree with the government.

A.

We begin with the initial question of whether the BIA’s

grant or denial of a good faith marriage waiver under

ZIA V. GARLAND 9

§ 1186a(c)(4)(B) fits within the jurisdiction-stripping

provision of § 1252(a)(2)(B)(ii). We hold that it does.

In Oropeza-Wong, we considered this exact question but

came to a contrary conclusion. We rejected an argument

from the government that § 1252(a)(2)(B)(ii) stripped our

jurisdiction, holding that good faith waiver determinations

“are not purely discretionary and are therefore generally

subject to review.” Oropeza-Wong, 406 F.3d at 1142. We

held that “[u]nless the disputed determination is purely

discretionary—unless there are no questions of fact or law at

issue—judicial review is not precluded.” Id. We then held

that the BIA had not erred in its adverse credibility

determination, and that substantial evidence supported the

BIA’s finding that Oropeza-Wong had not entered into a

good faith marriage. Id. at 1148.

This holding is “irreconcilable” with the Supreme

Court’s recent decision in Patel. There, the Court read

§ 1252(a)(2)(B)(i)’s bar on judicial review expansively to

“prohibit[] review of any judgment regarding the granting

of relief under [the enumerated provisions].” Patel, 596 U.S.

at 338. (emphasis in original). The Court made clear that

§ 1252(a)(2)(B)(i) applies to all aspects of the BIA’s

decision regardless of whether the underlying

determinations are characterized as discretionary or factual,

rejecting the government’s argument that “judgment” refers

exclusively to “discretionary” decisions. Id. at 340–42.

Patel specifically held that “[f]ederal courts lack jurisdiction

to review facts found as part of discretionary-relief

proceedings under [the enumerated provisions] in

§ 1252(a)(2)(B)(i).” Id. at 347.

Although Patel addressed § 1252(a)(2)(B)(i), its

reasoning applies to the neighboring subsection

10 ZIA V. GARLAND

§ 1252(a)(2)(B)(ii). The two subsections are similar, with

the first discussing “any judgment” made by the agency

under certain listed statutes and the second—a broader

catchall provision—referencing “any other decision or

action” left to the discretion of the agency. “The proximity

of clauses (i) and (ii), and the words linking them—‘any

other decision’—suggests that Congress had in mind

decisions of the same genre, i.e., those made discretionary

by legislation.” Kucana v. Holder, 558 U.S. 233, 246–47

(2010) (reading the provisions harmoniously). We hold that

Patel’s interpretation of “any judgment” in subsection (i)

thus equally applies to “any other decision or action” in

subsection (ii). See Miller, 335 F.3d at 900 (noting “the

issues decided by the higher court need not be identical in

order to be controlling”). We read “any other decision or

action” expansively to cover all determinations made in

support of a grant of discretionary relief under subsection

(ii).

Section 1186a(c)(4) is such a grant of discretionary

relief. The statutory language of § 1186a(c)(4) allows a

good faith marriage waiver to be granted “in the Secretary’s

discretion” and leaves credibility determinations and

weighing of the evidence to “the sole discretion of the

Secretary.” Id. Despite this clear statutory language,

Oropeza-Wong held that good faith marriage waiver

decisions “are not purely discretionary and are therefore

generally subject to review.” 406 F.3d at 1142. This

statement cannot be reconciled with the reasoning in Patel

rejecting a discretionary/non-discretionary distinction when

determining whether a BIA decision or finding fits within

the jurisdiction-stripping provision. See Patel, 596 U.S. at

341–42. Patel makes clear that any underlying eligibility

determination made in support of the ultimate discretionary

ZIA V. GARLAND 11

decision is beyond judicial review—“[f]ederal courts lack

jurisdiction to review facts found as part of discretionary-

relief proceedings.” Id. at 347. Our previous holding that a

determination is “purely discretionary” and therefore within

the jurisdiction-stripping provisions only when “there are no

questions of fact or law at issue” is no longer good law.

Oropeza-Wong, 406 F.3d at 1142. Similarly, our holding in

Oropeza-Wong that the statute does not “strip courts of

jurisdiction to review adverse credibility determinations in

particular,” id., cannot be reconciled with Patel’s holding

that the jurisdiction-stripping provision “plainly includes

factual findings” such as credibility determinations, Patel,

596 U.S. at 339. We therefore now hold that the BIA’s

decision on a good faith marriage waiver and any underlying

eligibility determinations fall within the scope of the

jurisdiction-stripping provision in § 1252(a)(2)(B)(ii).

B.

This does not end our jurisdictional analysis, however.

We must also consider whether the Limited Review

Provision nonetheless secures our jurisdiction over good

faith marriage determinations.

Neither Patel nor Oropeza-Wong addressed the

application of the Limited Review Provision. However, the

Supreme Court’s discussion of this provision in Wilkinson v.

Garland, 601 U.S. 209 (2024), is instructive. There, the

Court analyzed whether there was jurisdiction to review a

decision that a petitioner had not met the “exceptional and

extremely unusual hardship” requirement necessary to be

eligible for cancellation of removal. Id. at 212. Despite

recognizing that § 1252(a)(2)(B)(i) strips courts of

jurisdiction to review cancellation of removal decisions,

including the underlying hardship determination, the Court

12 ZIA V. GARLAND

found that the “application of the statutory ‘exceptional and

extremely unusual hardship’ standard to a given set of facts

presents a mixed question of law and fact” and therefore falls

within the scope of the Limited Review Provision. Id. at

221. Consistent with Patel, however, the Court reiterated

that agency factfinding (for example “an IJ’s factfinding on

credibility”) remains unreviewable. Id. at 222, 225.

Applying Wilkinson’s reasoning to the present case, we

hold that the good faith marriage determination is a mixed

question of fact and law over which we have jurisdiction

under the Limited Review Provision. Like the statutory

language of “exceptional and extremely unusual hardship,”

8 U.S.C. § 1229b(b)(1)(D), the statutory language here

requiring a “good faith” marriage sufficiently states a legal

standard, 8 U.S.C. § 1186a(c)(4). See Wilkinson, 601 U.S.

at 221. The good faith marriage determination, similar to the

exceptional and extremely unusual hardship standard,

“requires an IJ to evaluate a number of factors in

determining” whether a petitioner entered into a marriage in

good faith. Id. at 222; compare In re Monreal-Aguinaga, 23

I.&N. Dec. 56, 63 (B.I.A. 2001) (outlining factual

considerations that impact exceptional and extremely

unusual hardship determination such as age, length of

residence, health, political and economic considerations in

home country, and involvement in community) with 8 C.F.R.

§ 1216.5(e)(2)(i)–(iv) (listing factual considerations that

impact the good faith marriage determination such as

combined finances, length of time of cohabitation, and birth

certificates of any children). While those underlying factual

determinations are not reviewable, “[w]hen an IJ weighs

those found facts and applies the [‘good faith’] standard,”

the determination is an application of law to facts that is

ZIA V. GARLAND 13

within the scope of our review. Wilkinson, 601 U.S. at 222. 1

Although it “may require an IJ to closely examine and weigh

a set of established facts, . . . it is not a factual inquiry.” Id.

at 221; see also Guerro-Lasprilla, 589 U.S. at 234 (holding

“questions of law” includes the application of a legal

standard to such facts).

“Only the question [of] whether those established facts

satisfy the statutory eligibility standard is subject to judicial

review.” Wilkinson, 601 U.S. at 225. “[A] mixed question

[that] requires a court to immerse itself in facts. . . suggests

a more deferential standard of review.” Id. at 222 (“Because

this mixed question is primarily factual, that review is

deferential.” Id. at 225). The good faith marriage

determination is such a primarily factual question. See

Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004)

(“Whether [Petitioner] entered into the qualifying marriage

in good faith is an intrinsically fact-specific question . . . .”);

1

We note this holding is consistent with our longstanding view of the

good faith marriage determination as a mixed question of fact and law as

well as the conclusions of other circuits. See, e.g., Oropeza-Wong, 406

F.3d at 1143 (“Petitions for statutory waivers . . . on the basis of a good

faith marriage involve legal and factual questions . . . .”); Nakamoto v.

Ashcroft, 363 F.3d 874, 881 (9th Cir. 2004) (noting marriage fraud is a

“decidedly factual determination . . . guided by legal standards”); see

also Alzaben v. Garland, 66 F.4th 1, 7 (1st Cir. 2023) (“The good-faith-

marriage determination, then, is more appropriately conceptualized not

as a wholly factual determination, but rather, as a mixed question of law

and fact.”); Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th

Cir. 2009) (finding jurisdiction under § 1252(a)(2)(D) to review a good

faith marriage determination); Nguyen v. Mukasey, 522 F.3d 853, 855

(8th Cir. 2008) (“We have jurisdiction to consider what the legal

standard is for the good-faith determination and to review the threshold

determination of whether the credited evidence meets the good-faith

standard.”).

14 ZIA V. GARLAND

Alzaben, 66 F.4th at 7 (noting the fact-intensive nature of the

good-faith inquiry).

We therefore hold that, as a mixed question of fact and

law, the good faith marriage determination is a “question of

law” that is reviewable under § 1252(a)(2)(D). As it is a

primarily factual question, our review is deferential.

III.

Applying this revised understanding of our jurisdiction,

we move to analysis of the three arguments raised in Zia’s

petition.

First, we dismiss for lack of jurisdiction Zia’s challenges

to the IJ’s adverse credibility finding. See Wilkinson, 601

U.S. at 225 (“For instance, an IJ’s factfinding on

credibility. . . remain[s] unreviewable.”). At bottom Zia

disagrees with the IJ’s weighing of inconsistencies and

vagueness in his testimony, but that disagreement does not

amount to a colorable constitutional or legal challenge.

The adverse credibility finding is fatal to Zia’s second

argument that the agency erred in holding his marriage was

not entered into in good faith. We review this primarily

factual mixed question of fact and law under a deferential

standard. See id. at 225. Much of Zia’s arguments

challenging the agency’s good faith determination rely on

his testimony. However, given the adverse credibility

determination, Zia’s testimony is of little weight. And

without Zia’s testimony, the remaining documentary

evidence does not compel a conclusion that the BIA erred in

rejecting Zia’s claim that he and his wife intended to

establish a life together. See Bark v. I.N.S., 511 F.2d 1200,

1201 (9th Cir. 1975) (“Petitioner’s marriage was a sham if

ZIA V. GARLAND 15

the bride and groom did not intend to establish a life together

at the time they were married.”).

Zia’s third and final argument is that the agency violated

his due process rights by failing to provide a complete

hearing transcript. The hearing transcript contained 77

“indiscernible” entries related to Zia’s responses during

testimony, and Zia argues this incomplete record impacted

his ability to perfect his appeal. We have jurisdiction to

review this constitutional claim and we review de novo.

Benedicto v. Garland, 12 F.4th 1049, 1058 (9th Cir. 2021).

As our sister circuits have recognized, “[w]e are not

strangers to the problem of incomplete transcripts in

immigration cases,” and “a mere failure of transcription, by

itself, does not rise to the level of a due process violation.”

Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009); see also

Witjaksono v. Holder, 573 F.3d 968, 971 (10th Cir. 2009).

A decision will be reversed on due process grounds “if

(1) the proceeding was so fundamentally unfair that the alien

was prevented from reasonably presenting his case, and

(2) the alien demonstrates prejudice, which means that the

outcome of the proceeding may have been affected by the

alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614,

620–21 (9th Cir. 2006) (internal citations and quotations

omitted). Zia’s claim fails because he has not demonstrated

any prejudice. The BIA noted that later testimony often

clarified earlier indiscernible entries to the extent they were

relevant to the IJ’s decision, and Zia has not refuted that

determination. He has not identified any missing facts that

would have impacted the outcome of the proceeding, or any

argument he was unable to raise before the BIA due to the

missing entries in the hearing transcript. See id.; see also

Lata v. I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000) (“To

prevail on a due process challenge to deportation

16 ZIA V. GARLAND

proceedings, [petitioner] must show error and substantial

prejudice.”); Witjaksono, 573 F.3d at 975 (“ [A]n alien must

show that the ‘gaps [in the transcript] relate to matters

material to his case and that they materially affect his ability

to obtain meaningful review.’” (quoting Oroh, 561 F.3d at

65)); Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir.

2009) (“[R]espondent has not identified what material facts,

if any, were omitted from the record and has, therefore,

failed to show that such indiscernible testimony caused him

prejudice.”). Accordingly, we find Zia has not shown a due

process violation.

IV.

Patel and Wilkinson compel us to hold that we lack

jurisdiction to address Zia’s challenge to the agency’s

adverse credibility finding. While we have limited

jurisdiction to review the agency’s decision on the mixed

question of whether his marriage was entered into in “good

faith,” there was no error in the BIA’s determination that Zia

failed to meet that standard. Finally, Zia has failed to show

any due process violation arising from the imperfections in

the transcript of his hearing before the IJ.

The petition for review is DISMISSED in part and

DENIED in part.