UNITED STATES COURT 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 Iraq, petitions for review 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 appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 2, 2014

Elisabeth A. Shumaker 

Clerk of Court
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remainder of the petition for failure to assert viable constitutional or legal claims. 

See 8 U.S.C. §§ 1252(a)(2)(B)(ii), (D) (denying jurisdiction to review discretionary 

decisions, but not precluding court’s review of constitutional claims or legal 

questions). 

I. Background 

Mr. Kadim married Stephanie Mistretta, a United States citizen, in Ammon, 

Jordan in October 2000. Based on the marriage, he entered the United States on 

January 8, 2001, as a conditional permanent resident. See 8 U.S.C. § 1186a(a)(1) 

(providing that alien who marries United States citizen “obtain[s] the status of an 

alien lawfully admitted for permanent residence” on “conditional 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 before the second anniversary of the alien’s obtaining the 

status of lawful admission for permanent residence”). Ms. Mistretta withdrew the 

petition on June 15, 2004. On June 22, the United States Citizenship and 

Immigration Services (USCIS) terminated 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 she never signed the joint petition. 
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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 terminated his conditional-permanent-resident 

status, Immigration and Customs Enforcement placed him in removal proceedings, 

charging him with being a conditional permanent resident with terminated status, see

id. § 1227(a)(1)(D)(i). 

In removal proceedings, Mr. Kadim conceded that his conditional-permanentresident status had terminated on September 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 that Mr. Kadim had not 

qualified for the extreme-hardship exception before the USCIS terminated his 

conditional-permanent-resident status. In reaching this conclusion, the IJ determined 

that Mr. Kadim was required to prove extreme hardship between his entry into the 

United States (January 8, 2001) and the termination date (June 22, 2004). Although 

recognizing that Mr. Kadim had 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. 
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the IJ determined that extreme hardship due to renal failure did not occur until 2011, 

six years after termination of conditional-permanent-resident status. Even if 

Mr. Kadim had qualified for the hardship waiver, the IJ indicated that he would have 

exercised his discretion to deny a hardship waiver in light of Mr. Kadim’s “massive 

marriage fraud” and perpetuation of the fraud before the agency, as well as his 

physical abuse of and threats to Ms. Mistretta. Admin. R. at 82. Mr. Kadim 

appealed to the BIA. 

In a decision by a single board member, the BIA dismissed the appeal. The 

BIA found, contrary to Mr. Kadim’s argument, that the IJ did not require Mr. Kadim 

to show that he entered into the marriage in good faith in order to show extreme 

hardship and that the IJ properly considered hardship between the time Mr. Kadim 

was admitted to the United States as a conditional permanent resident and the time 

the USCIS terminated that status. Within that time period, his kidney disease caused 

extreme hardship only after his conditional-permanent-resident status terminated in 

2004. In rejecting Mr. Kadim’s assertion that the IJ violated his 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 proceedings were fundamentally unfair. 

II. Discussion 

 A. Standard of Review 

We lack jurisdiction to review the agency’s discretionary decision to deny a 

hardship waiver to an eligible alien. See Iliev v. Holder, 613 F.3d 1019, 1023 
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(10th Cir. 2010) (citing 8 U.S.C. §§ 1186a(c)(4), 1252(a)(2)(B)(ii)). But we have 

jurisdiction to review the petition to the extent it contends that the agency’s actions 

implicate constitutional claims 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 required 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 language 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 the 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 was 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 would not have exercised his discretion even if Mr. Kadim 

had shown extreme hardship. See 8 U.S.C. § 1186a(c)(4) (requiring alien to 

demonstrate extreme hardship before Secretary 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 result from removal, agency then decides 

whether to exercise discretion to remove conditions of permanent residence). 
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C. Termination of Conditional-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 status in 2004, he contends that he retained that status 

during the review of his removal proceedings, because only the IJ or the BIA can 

terminate conditional-permanent-resident status by a final order of removal. Thus, he 

maintains that the evidence of extreme hardship was not limited to the time between 

October 2000, when he obtained conditional-permanent-resident 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 alien 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 during which the relevant circumstances must 

occur.” In re Singh, 24 I. & N. Dec. 331, 333 (BIA 2007). Termination of 

conditional-permanent-resident status occurs “as of the date of the determination.” 

8 U.S.C. § 1186a(c)(3)(C). Thus, “conditional resident status . . . technically ends 

when the [USCIS] terminates such status . . . .” In re Stowers, 22 I. & N. Dec. 605, 

612 (BIA 1999); see also 8 C.F.R. § 216.3(a) (“The termination of status . . . shall 

take effect as of the date of such determination by the director, although the alien 
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may request a review of such determination in removal proceedings.”). Even after 

conditional resident status is terminated, a former 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. Kadim’s situation, it is clear, as the agency found, 

that Mr. Kadim’s conditional-permanent-residence status was terminated on June 22, 

2004. The statute requires that “extreme hardship” be determined between the start 

of his conditional-permanent-resident status and its termination, 8 U.S.C. 

§§ 1186a(c)(3)(C), (c)(4); temporarily retaining conditional-permanent-resident 

status during removal proceedings does not negate this statutory requirement. 

Indeed, Mr. Kadim provides no law, and we have found none, supporting an assertion 

that temporary retention of status would extend the time period for demonstrating 

extreme hardship beyond the June 22, 2004, date of termination. 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 agency entered a final order of removal. 

Because there was no legal error, we deny this claim. 

D. IJ’s Interpretation 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 
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to support his decision with evidence in the administrative record, which shows that 

he has suffered from kidney disease 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 lack 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 legal or constitutional question, we dismiss this claim for 

lack of jurisdiction. 

III. Conclusion 

 The petition for review is dismissed in part for lack of jurisdiction and denied 

in part. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge