IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60627

Summary Calendar

SHENGLI JIANG,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A074-682-513

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Shengli Jiang, a native and citizen of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (BIA) affirming an

immigration judge’s (IJ) denial of Jiang’s requests for termination of removal

proceedings and cancellation of removal under the special rule for abused

spouses of United States citizens. Jiang was admitted into the United States for

the purpose of marrying, in Texas, a United States citizen, which was required

to occur within 90 days of being admitted.

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Despite its being undisputed that Jiang did not marry within 90 days, and

that his marriage ended in divorce less than two years after he entered the

United States, he contends removal proceedings should be terminated because:

his passport stamp conferred upon him conditional resident status, even though

he concedes the stamp was issued in error based on his false assertion that he

had married within 90 days; he was timely married under Texas common law;

and his untimely marriage should be excused under a good-faith exception.

Our court has “authority to review only an order of the BIA, not the IJ,

unless the IJ’s decision has some impact on the BIA’s decision”. Mikhael v. INS,

115 F.3d 299, 302 (5th Cir. 1997) (citation omitted). An immigration court’s

findings of fact are reviewed for substantial evidence, Chen v. Gonzales, 470 F.3d

1131, 1134 (5th Cir. 2006); its rulings of law, de novo, according “deference to the

BIA’s interpretation of immigration statutes unless the record reveals

compelling evidence that the BIA’s interpretation is incorrect”, Mikhael, 115

F.3d at 302.

The erroneously issued passport stamp did not confer conditional resident

status upon Jiang because, as he admits, he did not complete a traditional

marriage within the requisite 90-day period. See Matter of Longstaff, 716 F.2d

1439, 1440-42 (5th Cir. 1983) (lawful admission must be substantive, not merely

procedural—i.e., error on Government’s behalf does not grant lawful admission

where such is otherwise unlawful); In re Koloamatangi, 23 I. & N. Dec. 548, 550

(BIA 2003) (affirming “long-standing” principle that aliens do not have lawful

resident status if they “obtained their permanent resident status by fraud, or

had otherwise not been entitled to it”).

In regard to Jiang’s contention that he was timely married under Texas

common law, the BIA found there was no credible evidence of cohabitation. To

establish a common-law marriage in Texas, he must show, inter alia, that he and

his alleged spouse cohabitated after their agreement to marry in 1999. Witter

v. I.N.S., 113 F.3d 549, 553 (5th Cir. 1997). As Jiang concedes, “the record is

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unclear as to the exact period of cohabitation”. Accordingly, the evidence does

not compel a finding that Jiang and his fiancée lived together as husband and

wife in a Texas common law marriage within the 90-day period. See Chen, 470

F.3d at 1134 (under “substantial evidence” standard, “reversal is improper

unless we decide not only that the evidence supports a contrary conclusion, but

also . . . compels it” (emphasis in original)) (citation and internal quotation

marks omitted).

Similarly, in regard to Jiang’s contention that the 90-day marriage

requirement is not absolute and a good-faith untimely marriage may be excused,

the evidence does not compel a finding that Jiang’s failure to marry within 90

days was due to factors beyond his control. See id.; Moss v. I.N.S., 651 F.2d

1091, 1093 (5th Cir. 1981) (remanding for hearing to determine whether two-day

delay in formalizing marriage was due to circumstances beyond alien’s control

where evidence indicated illness may have caused delay).

At any rate, even if Jiang had entered into a valid marriage or had

otherwise obtained conditional resident status, the record supports the IJ’s

determination (affirmed by the BIA) that Jiang’s conditional resident status was

terminated after his marriage ended in divorce less than two years after that

status was putatively conferred. See 8 U.S.C. § 1186a(b)(1)(A)(ii) (attorney

general shall terminate alien’s resident status if alien’s qualifying marriage was

“judicially annulled or terminated” before alien’s second anniversary of obtaining

such status).

Regarding Jiang’s challenge to the BIA’s determination that he was not

entitled to cancellation of removal under the special rule for abused spouses, the

Attorney General may cancel the removal of an alien if he can demonstrate

that he “has been battered or subjected to extreme cruelty by a spouse or parent

who is or was a United States citizen”. 8 U.S.C. § 1229b(b)(2)(A)(i)(I). The alien

must also meet a three-year physical presence requirement, must show good

moral character, must not be removable for certain reasons not relevant here,

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and must show that removal would result in “extreme hardship”. Id. at

§ 1229b(b)(2)(A)(ii)–(v).

The determinations of “extreme cruelty” and “extreme hardship” are

discretionary decisions that are shielded from judicial review by 8 U.S.C.

§ 1252(a)(2)(B). Wilmore v. Gonzales, 455 F.3d 524, 526-28 (5th Cir. 2006). On

the other hand, our court may review “constitutional claims or questions of law”.

8 U.S.C. § 1252(a)(2)(D). We look past an alien’s framing of an issue, however,

and will decline to consider “an abuse of discretion argument cloaked in

constitutional garb . . . .” Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir.

2006) (internal quotation marks, citation, and alteration omitted).

Jiang maintains the BIA abused its discretion and deprived him of due

process by giving insufficient consideration and weight to evidence in his favor

on issues of credibility, extreme cruelty, moral character, and extreme hardship.

Such contentions, however, do not raise constitutional or legal issues. See Sung

v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007) (finding no jurisdiction over a

contention “that the IJ did not consider all of the relevant factors” in making a

discretionary decision). Because Jiang challenges the weighing and

consideration of the evidence, our court lacks jurisdiction to consider this

challenge. See id.; 8 U.S.C. § 1229b(b)(2)(D).

Jiang also maintains the IJ’s adverse-credibility findings were erroneous.

Our court generally does not review the IJ’s assessment of the alien’s lack of

credibility unless the finding is unsupported by the record or based on pure

speculation. Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir. 2006). In any

event, we need not address the IJ’s credibility findings because they did not form

the basis for the resolution of any claim, and the IJ specifically found that, even

if Jiang were credible, he had failed to show extreme cruelty.

DENIED.

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