Zohaib Zia, a citizen of Pakistan, entered the United States as a conditional permanent resident based on his marriage to a U.S. citizen. When his marriage ended in divorce, he could not file a joint petition to remove the conditions on his status. Instead, he sought a hardship waiver under 8 U.S.C. § 1186a(c)(4)(B), which requires proof that the marriage was entered into in good faith. Both U.S. Citizenship and Immigration Services and the Board of Immigration Appeals denied his petition, finding that his testimony was not credible and that the documentary evidence was insufficient to prove he intended to establish a life with his spouse. Zia appealed, challenging the credibility finding, the ultimate good faith determination, and alleging a due process violation due to an incomplete hearing transcript.
The panel first addressed the scope of judicial review following recent Supreme Court guidance in Patel v. Garland and Wilkinson v. Garland. The court held that the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(B)(ii) bars review of the adverse credibility finding, as it is a factual determination made in support of a discretionary relief decision. This holding explicitly overrules the Ninth Circuit's prior decision in Oropeza-Wong, which had suggested that credibility determinations were reviewable. The court then applied the Limited Review Provision of 8 U.S.C. § 1252(a)(2)(D), concluding that the ultimate determination of whether a marriage was entered into in good faith is a mixed question of law and fact. While the underlying facts are unreviewable, the application of the legal standard to those facts is subject to judicial review. However, because this is a primarily factual inquiry, the court must apply a deferential standard of review. Under this standard, the court found that Zia's testimony carried little weight due to the adverse credibility finding, and the remaining evidence did not compel a conclusion that the BIA erred in denying the waiver.
This decision limits the ability of immigration petitioners to challenge adverse credibility findings in good faith marriage waiver cases, as such findings are now unreviewable. Petitioners must now focus their appeals on the application of the legal standard to established facts, knowing that courts will defer to the agency's weighing of evidence. The ruling also confirms that incomplete hearing transcripts do not constitute a due process violation unless the petitioner can demonstrate specific prejudice affecting the outcome of the proceeding.
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