NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0213n.06

No. 14-3222

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHNNY CHANDRADEO MAHARAJ,

Petitioner,

v.

ERIC HOLDER, Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

OF A FINAL ORDER OF THE 

BOARD OF IMMIGRATION 

APPEALS

Before: COLE, Chief Judge; KETHLEDGE, Circuit Judge; OLIVER, District Judge.

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KETHLEDGE, Circuit Judge. Johnny Maharaj, a citizen of Trinidad and Tobago,

petitions for review of a final order of removal issued by the Board of Immigration Appeals. He 

challenges both the Board’s refusal to grant a “hardship waiver” and the Board’s determination 

that he was not eligible for cancellation of removal. We deny the petition for review.

I.

In 1996, while still in Trinidad, Maharaj married his first wife, Sunita; they had a 

daughter there two years later. In 1999, the couple entered the United States on a six-month

tourist visa, but divorced almost immediately after that visa expired. A year or so later, they both 

married American citizens, giving Maharaj and Sunita the status of conditional permanent 

residents. See 8 U.S.C. § 1186a(a)(1). 

 

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The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern 

District of Ohio, sitting by designation.
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Maharaj and his new American wife, Genevieve, had three children during their 

marriage—though none with each other. Maharaj fathered a child with Sunita; Genevieve gave 

birth to two children fathered by another man, Richard Trusnick. Genevieve conceived her first 

child with Trusnick just a few months after she married Maharaj. A.R. 75. Maharaj testified that 

he and Genevieve lived together from March 2001 until May 2002, and then again from October 

2003 until December 2004. But Trusnick was unaware of this purported living arrangement: he 

testified that Genevieve lived with him for nearly all of that time.

While Maharaj was married to Genevieve, he purchased a house with Sunita. The 

mortgage paperwork was signed by everyone concerned—Maharaj, Genevieve, Sunita, and her 

husband—but the words “solely to release dower” appeared under the signatures of Sunita’s 

husband and Genevieve. A.R. 398. Maharaj opened a joint bank account with Genevieve, but 

there is no evidence that she ever used the account. The couple also had joint credit cards, but 

the statements do not show who used the cards, and Maharaj testified that he shredded the cards 

after Genevieve used them. A.R. 76.

Sunita became an American citizen in 2007; that same year, Maharaj filed for divorce 

from Genevieve. In September 2008, Citizenship and Immigration Services determined that 

Maharaj and Genevieve had not married in good faith. Hence the Service terminated Maharaj’s 

status as a permanent resident. See 8 U.S.C. § 1186a(c)(3)(C). Two months later, the 

Department of Homeland Security filed a Notice to Appear charging that Maharaj was 

removable from the United States. A.R. 649-54; see 8 U.S.C. § 1227(a)(1)(D)(i). 

In February 2009, Maharaj and Genevieve finalized their divorce. Maharaj then filed a 

petition for a hardship waiver, which would allow him to remain in the United States if he could 
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show that he had married Genevieve in good faith. See 8 U.S.C. § 1186a(c)(4). The Service

denied that petition in November 2009. 

Between 2009 and 2012, the immigration judge conducted multiple hearings to determine

whether to remove Maharaj. During those hearings, Maharaj argued that the Service should have 

granted his petition for a hardship waiver and that he was eligible for cancellation of removal 

pursuant to 8 U.S.C. § 1229b(a). The immigration judge rejected those arguments, and the 

Board of Immigration Appeals affirmed. This appeal followed.

II.

A.

Maharaj argues that the Board erred in denying him a hardship waiver. As an initial 

matter, the government disputes whether we have jurisdiction to address that argument. We 

typically have jurisdiction over a petition for review of a final order of removal. See 8 U.S.C. 

§ 1252(a)(1). But we may not review whether the Board erred in its “assessment of the weight 

or credibility of the evidence” in denying a hardship waiver. Johns v. Holder, 678 F.3d 404, 406 

(6th Cir. 2012). Although the government contends that Maharaj asks us to do just that, he 

actually asks us to answer two different questions: whether the Board applied the correct burden 

of proof in determining whether Maharaj married Genevieve in good faith, and whether 

substantial evidence supported the Board’s finding that he did not do so. Those are both 

questions of law over which we have jurisdiction. Id. at 406, 407. So we will answer them.

First, Maharaj argues that the Board erred by applying a heightened burden of proof. We 

review de novo whether it did so. Id. at 406. Where, as here, the Board adopts the immigration 

judge’s reasoning, we look through the Board’s decision and review the immigration judge’s 

decision directly. Gilaj v. Gonazales, 408 F.3d 275, 282-83 (6th Cir. 2005). 
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To obtain a hardship waiver, an alien must demonstrate by a preponderance of the 

evidence that he married an American citizen in good faith. See 8 U.S.C. § 1186a(c)(4)(B). The 

term “preponderance of the evidence,” of course, means simply “the greater weight of the 

evidence.” See, e.g., New York Life Ins. Co. v. Gamer, 303 U.S. 161, 166 (1938). Here, the 

immigration judge held that Maharaj “failed to meet his burden of proof” because “the greater

weight of the evidence” showed that he did not marry Genevieve in good faith. A.R. 80. Thus, 

the immigration judge applied the correct burden of proof.

Maharaj responds that the immigration judge must have implicitly held him to some 

higher burden, because the judge found that Maharaj did not marry in good faith even though he 

produced nearly all of the kinds of documents that a federal immigration regulation suggests he 

“may include” with his waiver application. 8 C.F.R. § 216.5(e)(2); see also id. § 216.4(a)(5). 

But that regulation nowhere states that a petitioner meets his burden simply by producing each 

kind of document specified therein. To the contrary, a petitioner meets his burden only if those 

documents actually show that he married in good faith. Here, the immigration judge found that 

Maharaj’s documents did not show that he did so—for reasons that we lack jurisdiction to 

review. That the immigration judge made such a finding shows only that he disagreed with 

Maharaj about the weight to assign to those documents, not that the judge held Maharaj to a

higher burden of proof. So this argument fails.

Second, Maharaj argues that substantial evidence does not support the immigration 

judge’s finding that he did not marry Genevieve in good faith. We must uphold that finding 

unless the evidence compels a contrary conclusion. Huang v. Mukasey, 523 F.3d 640, 649 (6th 

Cir. 2008). Here, the evidence showed that Maharaj and Genevieve never shared finances, rarely 

lived together, and had multiple children with other people while nominally married to one 
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another. That evidence hardly compels the conclusion that Maharaj married Genevieve in good 

faith. So this argument fails as well. 

B.

Maharaj also argues that the Board erred in holding that he was not eligible for 

cancellation of removal. We review that decision de novo. Harchenko v. I.N.S., 379 F.3d 405, 

409 (6th Cir. 2004). In certain circumstances, the Attorney General may cancel the removal of a 

permanent resident who is otherwise removable from the United States. 8 U.S.C. § 1229b(a). 

To be eligible for cancellation of removal under this provision, however, an alien must show, 

among other things, that he was “lawfully admitted for permanent residence” at the time he 

applied for cancellation of removal. Id. § 1229b(a)(1). 

An alien who marries an American citizen is “lawfully admitted for permanent residence” 

on a “conditional basis.” Id. § 1186a(a)(1). Within approximately two years of the marriage, the 

alien must file a petition to remove those conditions. Id. § 1186a(d)(2). In that petition, he must 

state, among other things, that he married his citizen-spouse in good faith. Id. 

§ 1186a(d)(1)(A)(III). If the Service determines that he did not marry in good faith, then his 

permanent-resident status is “terminated . . . as of the date of the [Service’s] determination [that 

the marriage was not in good faith].” Id. § 1186a(c)(3)(C).

Here, the Service determined on September 30, 2008 that Maharaj’s marriage to 

Genevieve was not in good faith, thereby terminating his permanent-resident status “as of [that] 

date.” Id. Maharaj applied for cancellation of removal two years later, in 2010, which means 

that he was no longer “lawfully admitted for permanent residence” when he did so. Thus, he was 

not eligible for cancellation of removal.
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Maharaj responds that in 2010 he was still a permanent resident according to the 

“definitions” section of the immigration regulations. That section provides in relevant part: 

The term lawfully admitted for permanent residence means the status of having 

been lawfully accorded the privilege of residing permanently in the United States 

as an immigrant in accordance with the immigration laws, such status not having 

changed. Such status terminates upon entry of a final administrative order of 

exclusion, deportation, removal or rescission.

8 C.F.R. § 1001.1(p) (emphasis added). Relying on the second sentence of that regulation, 

Maharaj argues that he was still a permanent resident when he applied for cancellation of 

removal because no final administrative order of removal had yet been entered against him.

On its face, the regulation does lay down a general rule that a permanent resident loses 

his status only after the Board enters a final administrative order. But another regulation carves 

out an exception to that rule, specifically providing that a conditional permanent resident like 

Maharaj loses his status “as of the date of [the Service’s] written decision [finding that his 

marriage to an American citizen was not in good faith].” 8 C.F.R. § 216.4(d). More importantly, 

the statute itself provides that a conditional permanent resident’s status is terminated “as of the 

date of the [Service’s] determination [that the marriage was not in good faith].” 8 U.S.C. 

§ 1186a(c)(3)(C). Under that statutory rule—which we apply today—Maharaj lost his status on 

September 30, 2008, which means that he was not a permanent resident when he applied for 

cancellation of removal two years later. Thus, he was not eligible for cancellation of removal.

The petition for review is denied.