1

The permanent resident status of an alien like Ms. Nguyen, who obtains such

status through marriage to a United States citizen, remains conditional for two years

until the alien and his or her citizen spouse jointly petition for removal of the

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 07-3889

____________

Thuy Thi Thanh Nguyen, *

*

Petitioner, *

*

v. * Petition for Review of

* an Order of the Board

Michael B. Mukasey, * of Immigration Appeals.

Attorney General, *

* [PUBLISHED]

Respondent. *

___________

Submitted: March 11, 2008

 Filed: April 14, 2008

___________

Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.

___________

PER CURIAM.

Thuy Thi Thanh Nguyen petitions for review of an order of the Board of

Immigration Appeals (BIA), which affirmed an Immigration Judge’s (IJ’s) order of

removal and denial of Ms. Nguyen’s application for a hardship waiver under 8 U.S.C.

§ 1186a(c)(4)(B) (waiver of joint-petition requirement to remove conditions upon

permanent resident status).1

 Respondent has moved to dismiss, asserting that we lack
conditional basis. See 8 U.S.C. § 1186a. In instances where the qualifying marriage

is terminated prior to the two-year anniversary date, as it was in Ms. Nguyen’s case,

the Attorney General has discretion to waive the joint-petition requirement and

remove the conditional basis of the permanent resident status if the alien demonstrates

that “the qualifying marriage was entered into in good faith by the alien.” See 8

U.S.C. § 1186a(c)(4)(B).

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jurisdiction over the discretionary denial of the hardship waiver and that we should

not review the IJ’s findings that Ms. Nguyen was removable under 8 U.S.C.

§ 1227(a)(1)(G)(i) for committing marriage fraud and under 8 U.S.C.

§§ 1227(a)(1)(A) and 1182(a)(6)(C)(i) for fraudulently procuring an immigration

benefit, because the BIA declined to rule on these findings given Ms. Nguyen’s

concession of removability under 8 U.S.C. § 1227(a)(1)(D) (termination of

conditional permanent resident status). For the following reasons, we deny

respondent’s motion to dismiss.

Although respondent is correct that we lack jurisdiction to review either the

BIA’s discretionary decision to deny a hardship waiver, see 8 U.S.C.

§ 1252(a)(2)(B)(ii), or the BIA’s determinations, in relation to a hardship-waiver

decision, as to what evidence is credible and how much weight to give that evidence,

see 8 U.S.C. § 1186a(c)(4)(B), we have jurisdiction to review constitutional claims or

questions of law raised in a petition for review, see 8 U.S.C. § 1252(a)(2)(D), and we

may also review the nondiscretionary determinations underlying the denial of relief,

such as the predicate legal question of whether the IJ properly applied the law to the

facts in determining the alien’s eligibility for discretionary relief, see Pinos-Gonzalez

v. Mukasey, No. 07-1299, 2008 WL 583677, at *2 (8th Cir. Mar. 5, 2008); ReyesVasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir. 2005). Here, the BIA did not

exercise its discretion and deny Ms. Nguyen a waiver; rather, the BIA found that

because Ms. Nguyen failed to prove that she entered into the qualifying marriage in

good faith, she did not meet the eligibility requirements even to be considered for a
2

Nor did the BIA or the IJ explicitly find Ms. Nguyen not credible. See

Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir. 2007) (“implicit credibility finding

made in passing does not suffice”). Thus, the holdings in Suvorov v. Gonzales, 441

F.3d 618, 620-22 (8th Cir. 2006), and Ignatova v. Gonzales, 430 F.3d 1209, 1212-13

& n.4 (8th Cir. 2005), which focus on adverse credibility determinations, do not

preclude jurisdiction of this appeal. 

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hardship waiver.2

 We have jurisdiction to consider what the legal standard is for the

good-faith determination and to review the threshold determination of whether the

credited evidence meets the good-faith standard.

As to the findings of removability, even though Ms. Nguyen conceded

removability under section 1227(a)(1)(D)(i), we are obliged to review the decision

that Ms. Nguyen is removable for having committed marriage fraud and for having

procured an immigration benefit by fraud or willful misrepresentation, because such

findings could result in a permanent bar to entry into the United States. See 8 U.S.C.

§ 1252(a)(1) (appeals court has jurisdiction to review final removal order); see also

Ymeri v. Ashcroft, 387 F.3d 12, 18 (1st Cir. 2004) (appeals court is required to review

finding that alien is removable under § 1182(a)(6)(C)(i), even if alien is removable on

other grounds, because finding of fraud or willful misrepresentation results in

permanent bar to entry into United States).

We therefore conclude that we have jurisdiction to consider the questions raised

in Ms. Nguyen’s petition for review. Accordingly, we deny respondent’s motion to

dismiss.

______________________________