## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 06-2310

________________ Emebet Binalf Diress, Petitioner,

v. Alberto Gonzales, Attorney General of the United States of America, Respondent. * * * * * * * * * * * * Petition for Review from the Board of Immigration Appeals.

[UNPUBLISHED]

________________ Submitted: June 15, 2007 Filed: July 13, 2007

________________ Before MELLOY, SMITH and GRUENDER, Circuit Judges.

________________ PER CURIAM. Emebet Diress, an Ethiopian native, petiti ons this court for review of a final order of the Board of Immigration App eals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of her motion to reopen and her request for a discretionary waiver. For the reasons that follow, we deny Diress’s petition.1 Effective March 1, 2003, the U.S. Immi gration and Naturalization Service ceased to exist and its functions were tr ansferred to the Department of Homeland Security as the U.S. Citizenship and Immigration Services. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 451, 116 Stat. 2135 (2002). -2- After her marriage to Belai Drese, a Un ited States citizen, Diress entered the United States as a conditional permanent resident. Diress and her husband filed a joint petition to remove the conditions on her perm anent residency, but the Citizenship and Immigration Services (“CIS”) 1 denied it. Following her divorce from her husband, Diress filed a single petition with the CIS, seeking a waiver of the joint-petition requirement on the basis that she had en tered into her marriage in good faith. See 8 U.S.C. § 1186a(c)(4)

. The CIS denied Diress’s petiti on, finding that Diress failed to establish that she had entered into a bona fide marriage with her husband. The CIS subsequently placed Diress in removal proceedings. After filing an unsuccessful motion for a continuance, Diress requested that the IJ grant her a waiver of the joint-petition requirement, again on th e basis that she entered her marriage in good faith. See 8 U.S.C. § 1186a(c)(4). The IJ denied the waiver, finding Diress’s claim of a good-faith marriage unsupported by credible evidence, and entered an order of removal. Diress filed a motion to reopen based solely on an affidavit from her exhusband stating that their marriage was bona fide. The IJ denied the motion on the grounds that Diress failed to prove the affidavit contained new or previously unavailable evidence. She appealed to the BIA, which affirmed the IJ’s decisions to deny the waiver and the motion to reopen. Thereafter, Di ress filed this timely petition for review. With respect to the IJ’s denial of her petition for a waiver, Diress does not raise any constitutional claims or questions of law and challenges only the IJ’s credibility findings. The IJ’s determinations regardi ng a discretionary waiver are solely within the Attorney General’s discretion. See 8 U.S.C. § 1186a(c)(4); Suvorov v. Gonzales , 441 F.3d 618, 621 (8th Cir. 2006) (“[A] waiv er under section 1186a(c)(4) is solely2Although it is unclear whether Diress challenges the IJ’s decision to deny her motion for a continuance, we note that wealso lack jurisdiction to review this decision. See Grass v. Gonzales , 418 F.3d 876, 879 (8th Cir. 2005). -3- within the Attorney General’s discretion. ”). Additionally, “[w]hether the qualifying marriage was entered into in good faith by th e alien spouse is a discretionary factual determination.” Suvorov , 441 F.3d at 622. Therefore, b ecause “[w]e lack jurisdiction to review issues of fact underlying discreti onary decisions of the Attorney General,” id. , we lack jurisdiction to review the IJ’s denial of Diress’s petition for a waiver of the joint-petition requirement, see id . (noting that jurisdiction is retained only where the petitioner raises a constitutional claim or question of law). 2 Diress also challenges the BI A’s affirmance of the IJ’s denial of her motion to reopen, which we review fo r abuse of discretion. See Fongwo v. Gonzales , 430 F.3d 944, 947 (8th Cir. 2005). An abuse of disc retion occurs when the decision “is without rational explanation, departs from established policies . . . or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim.” Hailemichael v. Gonzales , 454 F.3d 878, 882 (8th Cir. 2006). Because the BIA adopted the IJ’s decision with respect to the motion to reopen, we review the IJ’s decision. See id. A motion to reopen must present “new fact s that are materialto the outcome of the proceeding and were neither availabl e nor discoverable at the prior hearing .” Fongwo , 430 F.3d at 947 (citing 8 C. F.R. § 1003.23(b)(3)). Thus, the motion should be granted only if the new evidence “could not by the exercise of due diligence have been discovered earlier.” Id. Diress’s motion to reopen before the IJ included only an affidavit from her ex-husband stating th at their marriage was bona fide. Diress claimed this information was previouslyunavailable because her ex-husband had gone underground and she was unable to reach him to obtain an affidavit from him until after the conclusion of the re moval proceedings. The IJ observed that Diress had two years, while her case was pending, in whic h to locate her ex-husband and obtain his-4- statement. Diress’s motion did not discu ss any failed attempts to contact her exhusband during those two years, and she provided no explanation for her ability to locate him immediately upon conclusion of the removal proceedings. Furthermore, during the removal hearing the IJ questione d Diress’s counsel about the absence of a statement or testimony from the ex-husband, to which counsel responded that she believed the evidence, as presented, was su fficient to establish a bona fide marriage. The IJ denied the motion to reopen, fi nding that Diress had failed to show the evidence was previously unavailable and coul d not have been discovered or presented at the removal hearing. We have recognized that “a motion to reopen is not designed to permit parties a second opportunity to select which evidence should be presented.” Fongwo , 430 F.3d at 947. The evidence before the IJ suggests that Diress simply chose not to present a statement from her ex-husband at the removal hearing and then sought to have the case reopened so she could produce his statement. As such, and in light of Diress’s failure to prove the affidavit was previously unavailable, we cannot conclude that the IJ abused his discretion in denying Diress’s motion to reopen. For the foregoing reasons, we deny Diress’s petition for review.

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