#### Hector Leonardo Morocho ORELLANA, Angelica Gutierrez Morales, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 13-1885.

United States Court of Appeals, Second Circuit.

May 20, 2014.

Glenn Louis Formica (Elyssa Nicole Williams, on the brief), Formica Williams, P.C., New Haven, CT, for Petitioners.

Jessica Eden Sherman, Office of Immigration Litigation, Civil Division (Song E. Park, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division; Stuart F. Delery, Assistant Attorney Gen*37eral, Civil Division; Keith I. McManus, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, DC, for Respondent.

PRESENT: DENNIS JACOBS, CHESTER J. STRAUB, SUSAN L. CARNEY, Circuit Judges.

*SUMMARY ORDER*

Petitioner Hector Leonardo Morocho Orellana, a native and citizen of Ecuador, seeks review of an April 15, 2013 order of the BIA, affirming the April 19, 2011 decision of Immigration Judge (“IJ”) Michael W. Straus, which ordered him removed. *See In re Hector Leonardo Morocho Orellana,*No. [ AXXX XXX XXX ] (B.I.A. Apr. 15, 2013), *aff'g*No. [ AXXX XXX XXX ] (Immig. Ct. Hartford Apr. 19, 2011); *In re Angelica Gutierrez Morales,*No. [ AXXX XXX XXX ] (B.I.A. Apr. 15, 2013), *affg*No. [ AXXX XXX XXX ] (Immig. Ct. Hartford Apr. 19, 2011). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review the IJ’s decision as supplemented by the BIA. *See Chen v. Gonzales,*417 F.3d 268, 271 (2d Cir.2005). Although we lack jurisdiction to review the discretionary denial of an adjustment application, *see*8 U.S.C. § 1252(a)(2)(B)(i), we can review a denial based solely on the alien’s statutory ineligibility to adjust status, *see id.*§ 1252(a)(2)(D) (permitting review of constitutional claims and questions of law); *Sepulveda v. Gonzales,*407 F.3d 59, 62-63 (2d Cir.2005) (an alien’s statutory eligibility for relief is renewable). Findings of fact that are made in connection with statutory eligibility determinations are reviewed for substantial evidence. *See*8 U.S.C. § 1252(b)(4)(B); *Sumbundu v. Holder,*602 F.3d 47, 52 (2d Cir.2010) (noting that *Sepulveda*established that a non-discretionary decision made in connection with an eligibility determination may be reviewed for substantial evidence).

An alien who entered the United States without inspection, such as Orellana, is ineligible for an adjustment of status to lawful permanent resident unless he is the beneficiary of a visa petition filed on or before April 30, 2001 that was “approvable when filed.” 8 U.S.C. § 1255(i); 8 C.F.R. § 1245.10(a)(1). The regulations on such grandfathering define “approvable when filed” as “properly filed, meritorious in fact, and non-frivolous.” 8 C.F.R. § 1245.10(a)(3). A marriage-based visa petition is “meritorious in fact” only if it is “based on a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties.” *In re Riero,*24 I. & N. Dec. 267, 268 (B.I.A.2007); *see Linares Huarcaya v. Mukasey,*550 F.3d 224, 230 (2d Cir.2008) (per curiam) (approving of *Riero’s*interpretation).

Under this law, Orellana could be eligible to adjust status only if he demonstrated that the visa petition filed by ex-wife Luz Garzón was properly filed and that their marriage was bona fide. The agency acted within its discretion in finding that he failed to do so. As a threshold matter, Orellana never produced any evidence that when she married him, the bride had divorced her prior husband. If Garzón was married to someone else, her marriage to Orellana was not bona fide, even if they might otherwise have intended to share a life as husband and wife.

But the record also lacked evidence of such an intention. Orellana admitted that he learned about Garzon’s ex-husband only after their interview with the Immigration and Naturalization Service in 1999; that he met a few of her friends, but not her *38family; and that he never visited her in jail — indeed, he did not even know why she was in jail. Combined with Garzon’s failure to disclose her prior marriage on the visa petition, the agency had discretion to find that the petition was neither properly filed nor meritorious.

In the main, Orellana argues that the agency overlooked the documentary evidence he presented concerning his relationship with Garzón. But, as the IJ observed, most of those documents “do not address that marriage, or have anything to do with his ex-wife”; they demonstrated that Orellana lived in the “marital home,” but not that he and Garzón lived there together.

Orellana posits that he had no reason to enter a sham marriage because Luis Rojas, who testified at his merits hearing, could have sponsored him. That may be so. But even if Orellana did not marry Garzón solely for an immigration benefit, he never produced proof that Garzón was free to marry him.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED.