Abgaryanv.Holder

United States Court of Appeals, Ninth CircuitDec 11, 2009
357 Fed. Appx. 153 (9th Cir. 2009)

No. 05-74894.

Submitted December 9, 2009.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed December 11, 2009.

Artem M. Sarian, Esquire, Sarian Law Group, APLC, Glendale, CA, for Petitioner.

Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, NVL-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Las Vegas, NV, Don George Scroggin, Esquire, Trial, DOJ — U.S. Department of Justice, Washington, DC, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-356-840.

Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, District Judge.

The Honorable Barbara M.G. Lynn, U.S. District Judge for the Northern District of Texas, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Petitioner Elvira Abgaryan ("Abgaryan"), a citizen of Armenia, seeks cancellation of removal under the battered spouse provision of the Immigration and Nationality Act (INA). INA § 240A(b)(2); 8 U.S.C. § 1229b(b)(2). We have jurisdiction pursuant to 8 U.S.C. § 1252 and we deny the petition for cancellation of removal.

The parties are familiar with the facts of this case and we repeat them here only as necessary.

Although the Attorney General has discretion whether to grant or deny an application for cancellation of removal, see 8 U.S.C. § 1229b(b)(2), we retain jurisdiction to review an alien's statutory eligibility for such relief. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir. 2002) (holding that the court retained jurisdiction to review the purely legal question of whether the applicant's adult daughter qualified as a "child" under section 240A(b)(1) and was thus eligible for cancellation of removal). Thus, we have jurisdiction to review the BIA's determination that Abgaryan is ineligible for cancellation of removal under section 240A(b)(2) because she failed to establish the validity of her marriage to a United States citizen by showing that her first marriage had ended in death or divorce.

We conclude that the record does not compel a conclusion contrary to the BIA's. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The government's expert witness testified that the death certificate Abgaryan presented was fraudulent. Furthermore, the United States embassy in Armenia submitted a report stating the divorce decree Abgaryan proffered was false. Abgaryan has pointed to no evidence contradicting these findings or otherwise compelling the conclusion that her subsequent marriage to a United States citizen was legally valid. PETITION DENIED.

We do not review the IJ's adverse credibility finding, since the BIA did not address it. See Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).