UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

AHMAD KADIM, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9571 (Petition for Review)

ORDER AND JUDGMENT *

Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.

Ahmad Kadim, a native and citizen of Ir aq, petitions for revi ew of the Bureau of Immigration Appeals (BIA) decision affirming the immigration judge’s (IJ) decision ordering him removed and denying his request for an extreme-hardship waiver. We dismiss the petition in part for lack of jurisdiction and deny the

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 2, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - remainder of the petition for failure to asse rt viable constitutiona l or legal claims.
See 8 U.S.C. §§ 1252(a)(2)(B)(ii ), (D) (denying jurisdicti on to review discretionary decisions, but not precluding court’s review of consti tutional claims or legal questions). I. Background Mr. Kadim married Stephanie Mistretta, a United States citizen, in Ammon, Jordan in October 2000. Based on the ma rriage, he entered the United States on January 8, 2001, as a cond itional permanent resident. See 8 U.S.C. § 1186a(a)(1) (providing that alien who ma rries United States citizen “ obtain[s] the status of an alien lawfully admitted fo r permanent residence” on “c onditional basis”). On January 10, 2003, the two purportedly filed a joint petition to remove the conditions on his residence status. 1 See id . § 1186a(d)(2)(A) (requiring joint petition to be filed “during the 90-day period befo re the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence”). Ms. Mist retta withdrew the petition on June 15, 2004. On June 22, the United States Citizenship and Immigration Services (USCIS) terminat ed Mr. Kadim’s conditional-permanentresident status under 8 U.S.C. § 1186a (c)(3)(C), because the conditions on his residence had not been lifted.

1 Ms. Mistretta testified that sh e never signed the joint petition.- 3 - Mr. Kadim then sought a waiver for extreme hardship, citing his life-long struggle with kidney disease and need for medical care. 2 See id . § 1186a(c)(4)(A) (permitting alien to apply for discretionary waiver of joint filing requirement if he can show removal would result in extreme hardship). After the USCIS denied a waiver on August 23, 2008, and again term inated his conditional- permanent-resident status, Immigration and Customs Enforcem ent placed him in removal proceedings, charging him with being a conditional perman ent resident with terminated status, see id . § 1227(a)(1)(D)(i). In removal proceedings, Mr. Kadim conc eded that his conditional-permanentresident status had terminated on Septembe r 18, 2008, the date set forth on the notice to appear. He renewed his application for a waiver. See id . § 1186a(c)(3)(D) (permitting “alien whose permanent resident status is terminated ” to request review in removal proceedings). The IJ denied relief, concluding th at Mr. Kadim had not qualified for the extreme-hardship excep tion before the USCIS terminated his conditional-permanent-resident status. In reaching this c onclusion, the IJ determined that Mr. Kadim was required to prove extr eme hardship between his entry into the United States (January 8, 2001) and the te rmination date (June 22, 2004). Although recognizing that Mr. Kadim ha d kidney problems before he entered the United States,

2 Mr. Kadim also sought a waiver because he allegedly had entered into his marriage in good faith but could not file a joint petition because the marriage had ended in divorce. See 8 U.S.C. § 1186a(c)(4)(B). He no longer asserts a good-faith marriage as a basis for a waiver.- 4 - the IJ determined th at extreme hardship due to rena l failure did not occur until 2011, six years after termination of conditional- permanent-resident status. Even if Mr. Kadim had qualified for the hardship waiv er, the IJ indicated that he would have exercised his discretion to de ny a hardship waiver in light of Mr. Kadim’s “massive marriage fraud” and perpetua tion of the fraud before the agency, as well as his physical abuse of and threats to Ms. Mi stretta. Admin. R. at 82. Mr. Kadim appealed to the BIA. In a decision by a single board member, the BIA di smissed the appeal. The BIA found, contrary to Mr. Kadim’s argumen t, that the IJ did not require Mr. Kadim to show that he entered in to the marriage in good fait h in order to show extreme hardship and that the IJ properly consider ed hardship between the time Mr. Kadim was admitted to the United States as a c onditional permanent resident and the time the USCIS terminated that status. Within that time period, his kidney disease caused extreme hardship only after his conditional-pe rmanent-resident stat us terminated in 2004. In rejecting Mr. Kadim’s assertion th at the IJ violated hi s due process rights, the BIA concluded that the IJ based his decision on the evidence in the record and that Mr. Kadim did not show that the pr oceedings were fundamentally unfair. II. Discussion A. Standard of Review We lack jurisdiction to re view the agency’s discreti onary decision to deny a hardship waiver to an eligible alien. See Iliev v. Holder , 613 F.3d 1019, 1023- 5 - (10th Cir. 2010) (citing 8 U. S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii)). But we have jurisdiction to review the peti tion to the extent it contends that the agency’s actions implicate constitutional clai ms or legal questions. See id . at 1022, 1023. We review claims of constitutional or legal error de novo. Lorenzo v. Mukasey , 508 F.3d 1278, 1282 (10th Cir. 2007). B. Extreme-Hardship Waiver Mr. Kadim argues that § 1186a(c)(4) does not set forth a good-faith-marriage requirement for extreme-hardship waiver and the BIA wrongly re quired him to show that he entered into his marriage in good faith in order to qualify for an extremehardship waiver. It is true that “the plain la nguage of the statute does not require a good faith marriage to obtain an extreme hardship waiver.” Waggoner v. Gonzales , 488 F.3d 632, 633 (5th Cir. 2007). But the BIA did not require a good-faith marriage when it upheld the IJ’s determination that th e extreme-hardship waiver did not apply. Like the IJ, the BIA explicitly recognized that the extreme-hardship and good-faithmarriage waivers are independent and have separate requirements. 3 Accordingly, we conclude that there wa s no legal error.

3 It was only after Mr. Kadim failed to meet the statutory prerequisite of demonstrating extreme hardship that the IJ stated (in dicta) that based on the fraudulent marriage, the IJ woul d not have exercised his di scretion even if Mr. Kadim had shown extreme hardship. See 8 U.S.C. § 1186a(c)(4) (requiring alien to demonstrate extreme hardship before Secr etary of Homeland Security may exercise discretion to grant or deny waiver); see also Waggoner , 488 F.3d at 637 (stating that once alien shows extreme hardship would re sult from removal, ag ency then decides whether to exercise discre tion to remove conditions of permanent residence).- 6 - C. Termination of Conditio nal-Permanent-Resident Status Mr. Kadim argues that the BIA did not properly consider his conditionalpermanent-resident status. Although he admits that the USCIS terminated his conditional-permanent-resident st atus in 2004, he contends that he retained that status during the review of his removal proceedi ngs, because only the IJ or the BIA can terminate conditional-permanent -resident status by a final or der of removal. Thus, he maintains that the evidence of extreme hardship was not limited to the time between October 2000, when he obtai ned conditional-permanent-resi dent status, and October 2002, when it was terminated, and the IJ and BIA should have considered his evidence of latter hardship due to kidney disease. Legal authority does not support Mr. Kadim’s argument. “In determining extreme hardship, the Secretary of Homeland Security shall consider circumstances occurring only during the period that the a lien was admitted for permanent residence on a conditional basis.” 8 U.S.C. § 1186a(c)(4 ). This “statute provides both a start date and an end date for the period duri ng which the relevant circumstances must
occur.” In re Singh , 24 I. & N. Dec. 331, 333 (B IA 2007). Termination of conditional-permanent-resident status occurs “as of the da te of the determination.” 8 U.S.C. § 1186a(c)(3)(C). T hus, “conditional resident stat us . . . technically ends when the [USCIS] te rminates such status . . . .” In re Stowers , 22 I. & N. Dec. 605, 612 (BIA 1999); see also 8 C.F.R. § 216.3(a) (“The term ination of status . . . shall take effect as of the date of such determination by th e director, although the alien- 7 - may request a review of such determination in removal pr oceedings.”). Even after conditional resident status is terminated, a form er conditional resident may apply for a hardship waiver. Stowers , 22 I. & N. Dec. at 613. If he does so, he temporarily retains his former status pending review in removal proceedings. Id . at 612 n.10. Applying this law to Mr. Kadi m’s situation, it is clea r, as the agency found, that Mr. Kadim’s conditional-permanent-reside nce status was termin ated on June 22, 2004. The statute requires that “extreme hardship” be determined between the start of his conditional-permanent-resident st atus and its termination, 8 U.S.C. §§ 1186a(c)(3)(C), (c)(4); temporarily retaining condi tional-permanent-resident status during removal proceed ings does not negate this statutory requirement. Indeed, Mr. Kadim provides no law, and we have found none, supp orting an assertion that temporary retention of status woul d extend the time period for demonstrating extreme hardship beyond the June 22, 2004, date of te rmination. Furthermore, Mr. Kadim admitted in IJ proceedings that his conditional-permanent-resident status terminated before IJ proceedings began. See Admin. R. 87, 459. He cannot argue now that his status continued until the agen cy entered a final order of removal. Because there was no legal erro r, we deny this claim. D. IJ’s Interpretati on of Medical Evidence Lastly, Mr. Kadim argues that the IJ supplanted the medical evidence with his own conclusions regarding Mr. Kadim’ s health and the BIA accepted those conclusions without analysis. Mr. Kadim maintains that due process requires the IJ- 8 - to support his decision with evidence in the administrativ e record, which shows that he has suffered from kidney di sease his entire life and is now on a waiting list for a kidney transplant. Despite arguing a denial of due process, Mr. Kadim in essence challenges the IJ’s weighing of the evidence, a matter we l ack jurisdiction to review.
See 8 U.S.C. § 1252(a)(2)(B)(ii); Iliev , 613 F.3d at 1022, 1027. Because Mr. Kadim fails to raise a colorable le gal or constitutional question, we dismiss this claim for lack of jurisdiction. III. Conclusion The petition for review is dismissed in pa rt for lack of jurisdiction and denied in part.

Entered for the Court
Timothy M. Tymkovich Circuit Judge