United States Court of Appeals

For the First Circuit

No. 22-1561

ISAM ABDALLAH ALZABEN,

Petitioner,

v.

MERRICK B. GARLAND,

UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Selya, and Gelpí,

Circuit Judges.

Saher J. Macarius and Law Offices of Saher J. Macarius LLC on 

brief for petitioner.

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, Civil Division, United States Department of Justice, 

Erica B. Miles, Assistant Director, Office of Immigration 

Litigation, and Nicole J. Thomas-Dorris, Trial Attorney, Office of 

Immigration Litigation, on brief for respondent.

April 14, 2023
- 2 -

SELYA, Circuit Judge. Petitioner Isam Abdallah Alzaben, 

a Jordanian national, was granted status as a conditional permanent 

resident of the United States as a result of his marriage to a 

citizen. In time, though, his inability to prove that he entered 

the marriage in good faith led an immigration judge (IJ) to order 

his removal. The Board of Immigration Appeals (BIA) affirmed that 

order, and the petitioner now seeks judicial review. Faced with 

a jurisdictional maze, we proceed step by step: in the end, we 

dismiss the petition in part for want of jurisdiction and deny 

what remains. 

I

In January of 2001, the petitioner was admitted to the 

United States on a B-1 visa as a temporary nonimmigrant business 

visitor. See 22 C.F.R. § 41.31(a). Later that year, he married 

a United States citizen, through whom he obtained status as a 

conditional permanent resident. See 8 U.S.C. § 1186a(a). In March 

of 2004, the couple jointly filed a petition to remove the 

conditions associated with the petitioner's status. See id.

§ 1186a(c)(1)(A), (d)(2)(A).

As part of the review process, the United States 

Citizenship and Immigration Services (USCIS) interviewed the 

petitioner and his wife at its Boston field office on two 

occasions. See id. § 1186a(c)(1)(B). Based on those interviews, 

and after considering other evidence submitted by the couple, the 
- 3 -

USCIS issued a notice that it intended to terminate the 

petitioner's permanent resident status unless the couple could 

rectify deficiencies in their petition. The couple failed to do 

so and, as a result, the USCIS denied the petition in September of 

2008. 

The USCIS proceeded to notify the petitioner that he was 

subject to removal under 8 U.S.C. § 1227(a)(1)(D)(i) and directed

him to appear before an IJ for removal proceedings. But before 

his scheduled appearance, the petitioner and his wife divorced —

and he then sought to lift the conditions on his permanent resident 

status by applying for a hardship waiver on the ground that he had 

entered into the marriage in good faith and that his removal would 

result in an extreme hardship. See id. § 1186a(c)(4); see also 8 

C.F.R. § 1216.5(a)(1). 

In July of 2013, the USCIS denied the waiver request. 

The petitioner was again placed into removal proceedings. For 

reasons not apparent from the record, his case remained dormant

for several years before being heard in July of 2019. At that 

time, he reprised his contention that he was eligible for a 

hardship waiver due to his good-faith marriage. 

In determining whether the petitioner qualified for a 

hardship waiver, the IJ considered, among other things, the written 

decision of the USCIS denying the joint petition to remove the 

conditions on the petitioner's permanent residence. That decision 
- 4 -

rehearsed details from the interviews between the petitioner's

former wife and the USCIS, during which she struggled to remember 

basic facts about the marriage (such as whether she and the 

petitioner shared a post-office box, what bank they used for their 

joint account, and even, on one occasion, the date on which they 

had been married). So, too, the USCIS decision indicated, based

on a review of the former wife's criminal record, that during her 

marriage to the petitioner, she had been living at a separate 

address with another man, whom she identified as a former 

boyfriend. The decision noted that in 2004 she had given birth to 

a child, fathered by her boyfriend, while she had been married to 

the petitioner. 

In response, the petitioner offered several affidavits,

letters, photographs, financial records, and other documents, 

arguing that they proved that the marriage was genuine. The IJ 

afforded an affidavit from the petitioner's former wife "little to 

no weight" because she had not testified in person and was,

therefore, not subject to cross examination. The IJ proceeded to 

find the other evidence offered by the petitioner to be either 

incredible or unpersuasive, observing that little of it bore on 

the bona fides of the marriage.

In addition to this evidence, the petitioner offered his 

own testimony. He attempted to explain why his former wife had 

failed to remember the basic details of their marriage when 
- 5 -

interviewed by the USCIS, suggesting that she had been intoxicated 

during the interview. The IJ found that attempted explanation

unconvincing.

When all was said and done, the IJ denied the waiver 

request and ordered the petitioner removed from the country. On 

appeal, the BIA reached the same conclusion. This timely petition 

for judicial review followed.

II

We start with jurisdiction. "For petitions for review 

of BIA decisions, our jurisdiction is circumscribed by statute." 

Adeyanju v. Garland, 27 F.4th 25, 36 (1st Cir. 2022). Although we 

ordinarily have jurisdiction to review final orders of removal, 

see 8 U.S.C. § 1252(a)(1), Congress has foreclosed judicial review 

of "any . . . decision or action" over which the Attorney General 

or the Secretary of Homeland Security (the Secretary) exercises 

discretionary authority, id. § 1252(a)(2)(B)(ii). Nevertheless, 

the courts of appeals retain jurisdiction to review 

"constitutional claims or questions of law," even if such claims 

or questions arise in the course of decisions that are ultimately 

discretionary. Id. § 1252(a)(2)(D). 

Whether to afford a noncitizen a hardship waiver to lift 

the conditions attached to his status as a permanent resident is 

a decision committed to the discretion of the Secretary. See id.

§ 1186a(c)(4). To obtain such discretionary relief, a noncitizen 
- 6 -

must first demonstrate that he satisfies the eligibility 

requirements set forth by statute. See id. As relevant here, one 

eligibility criterion is that the noncitizen must have entered

into his marriage with his citizen-spouse in good faith, see id.

§ 1186a(c)(4)(B), which requires that the noncitizen prove that he 

had intended to establish a life with his spouse at the time they 

were wed, see McKenzie-Francisco v. Holder, 662 F.3d 584, 586-87 

(1st Cir. 2011). This burden can be satisfied through probative 

"evidence relating to the amount of commitment by both parties to 

the marital relationship." 8 C.F.R. § 1216.5(e)(2). How that 

evidence is weighed and how its credibility is assessed, though, 

are determinations committed to the Secretary's "sole discretion." 

8 U.S.C. § 1186a(c)(4). 

Here, the BIA upheld the IJ's finding that the petitioner

was ineligible for discretionary relief because he had failed to 

establish the bona fides of his marriage. And inasmuch as the 

petitioner's ineligibility was dispositive of his appeal, the BIA 

refrained from addressing the IJ's separate determination that the 

petitioner's case did not warrant discretionary relief. The BIA 

decision, then, concerns only the statutory proviso that requires 

the petitioner to show that he entered into the marriage in good 

faith — a requirement that we have described as being 

"circumscribed by a legal standard" and, therefore, subject to
- 7 -

judicial review. Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir. 

2005). 

The Attorney General resists this conclusion. He 

asserts that the Supreme Court's recent decision in Patel v. 

Garland, which held that "[f]ederal courts lack jurisdiction to 

review facts found as part of discretionary-relief proceedings," 

142 S. Ct. 1614, 1627 (2022), prevents us from reviewing the BIA's 

finding that the petitioner had not entered into his marriage in 

good faith. According to the Attorney General, we must abrogate 

our prior precedent holding to the contrary. See United States v. 

Bowers, 27 F.4th 130, 134 (1st Cir. 2022) (explaining that law of 

circuit may be reexamined by panel when intervening Supreme Court 

decision undermines existing circuit law).

We think not. To begin, the Patel Court addressed the 

language of 8 U.S.C. § 1252(a)(2)(B)(i), which strips federal 

courts of jurisdiction over "any judgment" concerning the granting 

of discretionary relief pursuant to various enumerated provisions

of the Immigration and Nationality Act. See 142 S. Ct. at 1621. 

The Court held that the term "any judgment" included findings of 

fact. Id. at 1627. The granting of a hardship waiver based on a 

noncitizen's good-faith marriage, though, does not fall within one 

of the enumerated provisions listed under section 1252(a)(2)(B)(i)

but, rather, qualifies as a discretionary "decision or action" of 

the Secretary over which federal courts are stripped of 
- 8 -

jurisdiction under a neighboring provision (section 

1252(a)(2)(B)(ii)). See Cho, 404 F.3d at 98-99. Thus, the Supreme 

Court's gloss on the term "any judgment" in section 

1252(a)(2)(B)(i) does not directly address the scope of the term 

"any decision or action" employed in section 1252(a)(2)(B)(ii). 

The Attorney General nonetheless posits that the Patel

Court's interpretation of section 1252(a)(2)(B)(i) applies with 

equal force to section 1252(a)(2)(B)(ii). But even if we assume 

(for the sake of argument only) that the Attorney General has it 

right, we are unpersuaded that such an interpretation would require 

an outright dismissal for lack of jurisdiction in this case. 

To be sure, we previously have characterized the 

determination of whether a marriage was entered into in good faith 

as a factual finding, subject to deferential review. See, e.g.,

Valdez v. Lynch, 813 F.3d 407, 410 (1st Cir. 2016). But unlike 

the factual findings at issue in Patel — which pertained to the 

IJ's assessment of the petitioner's credibility and whether the 

petitioner had subjectively intended to misrepresent his 

immigration status, see 142 S. Ct. at 1620 — the determination of 

whether a marriage was made in good faith requires applying a 

statutory standard to evidence, see Cho, 404 F.3d at 101-02. 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. See Pullman-Standard v. 
- 9 -

Swint, 456 U.S. 273, 289 n.19 (1982) (defining mixed questions of 

law and fact as "questions in which the historical facts are 

admitted or established, the rule of law is undisputed, and the 

issue is whether the facts satisfy the statutory standard"). This 

is important because the Supreme Court has held that such mixed 

questions are encompassed by section 1252(a)(2)(D), which retains 

judicial review over "constitutional claims or questions of law 

raised upon a petition," notwithstanding the jurisdictionstripping provisions of section 1252(a)(2)(B). Guerrero-Lasprilla

v. Barr, 140 S. Ct. 1062, 1068-73 (2020). Such an interpretation 

of section 1252(a)(2)(D) makes sense, for — as the Court noted —

to hold otherwise would foreclose judicial review of any BIA 

decision "applying a properly stated legal standard, irrespective 

of how mistaken that application might be." Id. at 1073.

We acknowledge that it may seem counterintuitive that 

whether a marriage was made in good faith (which we have 

characterized as a question of fact subject to substantial evidence 

review) is a question of law for the purposes of section 

1252(a)(2)(D). But that incongruity simply reflects the factintensive nature of the good-faith inquiry: not all mixed 

questions of law and fact are mixed equally, and those that 

"immerse courts in case-specific factual issues" should usually be 

reviewed by appellate courts with deference. U.S. Bank Nat'l Ass'n 

ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138 
- 10 -

S. Ct. 960, 967 (2018). There is no doubt, though, that whether 

a petitioner has proved the bona fides of his marriage is a 

question that implicates a legal standard. See Cho, 404 F.3d at 

100. And "whether settled facts satisfy a legal standard" is a 

question that comes within the ambit of section 1252(a)(2)(D) and,

thus, is properly before us on a petition for judicial review. 

Guerrero-Lasprilla, 140 S. Ct. at 1068. 

To summarize, we proceed upon the following principles. 

The question of whether the petitioner entered into his marriage 

in good faith is a mixed question of law and fact over which we 

have jurisdiction, mindful that we afford the conclusion of the 

BIA considerable deference, upholding its determination as long as 

it is supported by substantial evidence. See Cho, 404 F.3d at 

100-02. Challenges to the BIA decision that implicate pure

questions of law are reviewed de novo. See McKenzie-Francisco, 

662 F.3d at 586. Wholly factual issues, such as "[t]he 

determination of what evidence is credible and the weight to be 

given that evidence," are left by statute to the "sole discretion 

of the Secretary." 8 U.S.C. § 1186a(c)(4). We thus lack 

jurisdiction to review those factual findings.1 See id.

1 Whether we lack jurisdiction because those determinations 

are committed to the discretion of the Secretary, see Cho, 404 

F.3d 101-02, or because, as the Attorney General contends, they 

are wholly factual findings, see Patel, 142 S. Ct. at 1627, is not 

essential to this case, and we need not address that distinction 

now.
- 11 -

§ 1252(a)(2)(B)(ii). To that extent, then, we must dismiss the 

instant petition for want of jurisdiction. 

III

Against this backdrop, we turn to the petition. "In the 

immigration context, judicial review typically focuses on the 

final decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60 

(1st Cir. 2020). But "[w]here, as here, the BIA adopts and affirms 

an IJ's decision 'while adding its own gloss, we review both the 

IJ's and the BIA's decisions as a unit.'" Villafranca v. Lynch, 

797 F.3d 91, 94 (1st Cir. 2015) (quoting Jianli Chen v. Holder, 

703 F.3d 17, 21 (1st Cir. 2012)).

The petitioner challenges the BIA's decision on multiple

fronts, contending that it improperly upheld the IJ's factual 

findings, that it failed to adhere to necessary legal standards, 

and that it erroneously concluded that the petitioner had failed 

to prove the bona fides of his marriage. We address each 

contention in turn.

A

In the petitioner's view, the IJ erred in making several 

factual determinations with respect to assessments of credibility 

and the weighing of evidence. Specifically, the petitioner submits 

that the IJ should either have credited or given more heft to the 

affidavit of his former wife and the testimony of her uncle. 

Relatedly, he submits that the IJ should have afforded more weight 
- 12 -

to his testimony concerning his former wife's supposed 

intoxication during her interview with the USCIS (and, 

correspondingly, that the IJ should have afforded less weight to 

the statements that she made during those interviews).

As previously discussed, see supra Part II, we lack 

jurisdiction either to evaluate the credibility determinations of 

the IJ or to reexamine the weight that he gave to any particular 

piece of evidence. The petitioner takes a series of vigorous

exceptions to how the IJ assessed the evidence, but those 

assessments are not for us to review.2 See 8 U.S.C. §§ 1186a(c)(4), 

1252(a)(2)(B)(ii). To the extent that the petition tries to 

advance these challenges, we dismiss it.

B

This brings us to the petitioner's contentions that the 

IJ, and thereafter the BIA, considered evidence in a manner that 

2 We pause to remark the peculiarity of the IJ granting 

significant weight to evidence that he did not evaluate directly 

but, instead, gleaned from the USCIS decision denying the joint 

petition. The IJ noted that although the Department of Homeland 

Security had provided video recordings of the former wife's 

interviews, the immigration court lacked the necessary equipment 

to view those recordings. It appears (from the record before us) 

that the IJ drew the facts about those interviews mainly from the 

USCIS decision itself. For his part, though, the petitioner 

neither disputes nor challenges those facts. By the same token, 

he does not challenge the method by which the IJ found those facts. 

Any arguments relating to these matters are, therefore, waived. 

See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010); United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 13 -

was contrary to law. As we explain below, we find those 

contentions to be without merit.

1

The petitioner suggests that it was unlawful for the IJ 

to consider his former wife's statements during her interview with

the USCIS because she was intoxicated at the time. In support, he 

cites cases that address a judge's broad discretion in determining 

whether a witness is competent to testify in federal criminal 

proceedings.3 See, e.g., United States v. Van Meerbeke, 548 F.2d 

415, 418-19 (2d Cir. 1976); United States v. Harris, 542 F.2d 1283, 

1302-03 (7th Cir. 1976).

This case law is wide of the mark. The petitioner's 

former wife did not testify before the IJ. Rather, the allegations 

concerning her intoxication during the USCIS interview — and we 

stress that they are merely allegations — stem from the 

petitioner's attempt to explain to the IJ (in the course of his 

own testimony) his former wife's inability to recall basic facts 

about the marriage. The IJ found that explanation unpersuasive.

Seen in that light, what the petitioner challenges, in 

essence, is either an assessment of his credibility or an 

assessment of the weight to be given to the statements of his 

3 Notably, the petitioner offers no case law, statute, or 

regulation pertaining to the competency of a witness in the context 

of a removal proceeding.
- 14 -

former wife, each of which constitutes an unreviewable factual 

determination. See Al-Saka v. Sessions, 904 F.3d 427, 431 (6th 

Cir. 2018) ("[W]e may not second guess how the [BIA] assessed the 

weight or credibility of the evidence before coming to a 

decision."). "In determining whether a petitioner has raised a 

colorable constitutional claim or question of law, substance must 

triumph over form." Ramirez-Matias v. Holder, 778 F.3d 322, 326 

(1st Cir. 2015). Imaginative labeling cannot create jurisdiction 

where none exists: a noncitizen cannot "'transform an unreviewable 

issue of fact into a reviewable issue of law' by the simple 

expedient of cloaking what is essentially a factual claim in the 

raiment of constitutional or legal error." Id. (quoting Alvarado

v. Holder, 743 F.3d 271, 275 (1st Cir. 2014)).

As a fallback, the petitioner insists that the IJ should 

have excluded his former wife's statements under Rule 403 of the 

Federal Rules of Evidence because the statements were unduly 

prejudicial. But this is thin gruel: the Federal Rules of 

Evidence do not apply in immigration proceedings. See MirandaBojorquez v. Barr, 937 F.3d 1, 7 (1st Cir. 2019). Consequently, 

the petitioner has failed to identify a legal basis from which to 

challenge the IJ's consideration of those statements. 

2

Next, the petitioner assigns error to the IJ's 

consideration of his former wife's extra-marital affair. That 
- 15 -

affair, the petitioner tells us, is irrelevant to the question of 

whether the marriage was entered into in good faith at its 

inception. We do not agree. 

It may be true in some circumstances that infidelity 

after years of marriage does not signal a lack of good faith by a

couple at the time they were wed. That truism has no bearing, 

though, on whether the IJ — in the circumstances at hand — was 

precluded by law from considering the infidelity in the good-faith 

analysis. And the petitioner's argument runs headlong into a 

precedential barrier: we previously have held that, in appropriate 

circumstances, evidence of infidelity may be relevant to the 

evaluation of good faith as long as such evidence speaks to the 

couple's commitment to the marital relationship and such 

commitment, in turn, sheds light on the couple's intent at the 

inception of their marriage. See Lamim v. Holder, 760 F.3d 135,

137-38 (1st Cir. 2014). Here, there is simply nothing to suggest 

that the IJ's consideration of the infidelity was grounded in 

anything other than an interest in ascertaining the extent of that 

commitment based on factors articulated in federal regulations. 

See 8 C.F.R. § 1216.5(e)(2)(i)-(iv). It follows that — under these 

circumstances — the IJ's decision to consider the affair did not 

constitute an error of law.
- 16 -

3

By statute, an IJ is required to mull "any credible 

evidence" that concerns a petition. 8 U.S.C. § 1186a(c)(4). The

petitioner argues that the IJ flouted that requirement by ignoring 

a key piece of evidence: a document that had granted the 

petitioner a power of attorney over his former wife's finances, 

including tax filings.

"Although an IJ may not simply ignore substantial 

testimonial and documentary proof, [he] need not discuss ad nauseum 

every piece of evidence." Pan v. Gonzales, 489 F.3d 80, 87 (1st 

Cir. 2007). "So long as the IJ has given reasoned consideration 

to the evidence as a whole, made supportable findings, and 

adequately explained [his] reasoning, no more is exigible." Id. 

Such is the case here. The power of attorney granted to the 

petitioner related to his former wife's financial affairs, and the 

IJ plainly addressed evidence that concerned the commingling (or 

lack thereof) of the couple's finances. What is more, the BIA 

discussed the power of attorney in its reasoning and explicitly

decided that the document did not alter the good-faith calculus. 

Reading the two decisions together, see Villafranca, 797 F.3d at 

94, there is no indication that either the IJ or the BIA failed to 

consider the evidence as a whole.
- 17 -

C

Finally, the petitioner contends that the evidence he 

presented to the IJ was more than sufficient to prove that he 

entered into the marriage in good faith. As we have said, the 

relevant legal standard is whether the noncitizen intended to 

establish a life with his spouse at the time they were wed. See

McKenzie-Francisco, 662 F.3d at 586-87. The noncitizen must carry 

the devoir of persuasion on that question, which he can satisfy by 

offering credible "evidence relating to the amount of commitment 

by both parties to the marital relationship." Lamim, 760 F.3d at 

137 (quoting 8 C.F.R. § 1216.5(e)(2)). Such evidence may include 

documentation of the commingling of financial assets and 

liabilities, evidence of cohabitation after the noncitizen 

obtained conditional permanent residence, birth certificates of 

children born as a result of the marriage, and other pertinent 

proof. See 8 C.F.R. § 1216.5(e)(2)(i)-(iv). 

We must uphold the agency's judgment as to the question 

of good faith "so long as it is supported by reasonable, 

substantial, and probative evidence on the record considered as a 

whole." Valdez, 813 F.3d at 410 (internal quotation marks omitted) 

(quoting Lamim, 760 F.3d at 138). Thus, reversal is warranted

only if "the record evidence would 'compel a reasonable factfinder 

to reach a contrary determination.'" Jing Lin v. Holder, 759 F.3d
- 18 -

110, 112 (1st Cir. 2014) (quoting Kinisu v. Holder, 721 F.3d 29, 

34 (1st Cir. 2013)). 

Taking the facts as found, we conclude that the decision 

of the agency (first the IJ and then the BIA) was supported by 

substantial evidence. The former wife's inability to recount basic 

facts about the marriage, as well as the evidence that she was 

living with another man and had a child with him, all while she 

was purportedly married to the petitioner, call into serious doubt 

the bona fides of the marriage. And even though the petitioner 

offered various financial records, affidavits, letters,

photographs, and other evidence in an effort to support his claim 

that he entered into the marriage in good faith, the evidence as 

a whole demonstrated a severely limited commingling of assets and 

a generally dubious commitment to the marriage by both parties. 

Considering the record in its totality, there is substantial 

evidence justifying a reasonable belief that the marriage was not 

undertaken in good faith. Accordingly, we reject the petitioner's

last assignment of error. 

IV

We need go no further. For the reasons elucidated above, 

the petition for review is dismissed in part and denied in part.

So Ordered.