Macharia v. Garland

Case: 21-60157 Document: 00516454126 Page: 1 Date Filed: 08/31/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 31, 2022 No. 21-60157 Lyle W. Cayce Clerk Allan Gatonye Macharia, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A203 049 750 Before King, Duncan, and Engelhardt, Circuit Judges. Per Curiam:* Allan Gatonye Macharia petitions for review from a decision of the Board of Immigration Appeals dismissing his appeal and upholding the denial of his application for a waiver of inadmissibility under § 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i). For the following reasons, we DENY the petition for review. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60157 Document: 00516454126 Page: 2 Date Filed: 08/31/2022 No. 21-60157 Allan Gatonye Macharia is a native and citizen of Kenya. He was admitted to the United States on January 4, 2000, on a F-1 student visa to attend college in Oklahoma. He testified that he stopped attending university after approximately three semesters. In 2011, Macharia was issued a Notice to Appear at removal proceedings for failure to comply with the conditions of his admission. In response, he applied for asylum and other forms of relief and was denied and ordered removed. Additionally, in 2011, Macharia’s first wife filed a Form I-130 application to classify Macharia as her spouse for immigration purposes, which corresponded with Macharia’s application for permanent resident status. That application was denied over concerns about the bona fides of the marriage. Macharia’s current petition for review relates to an application for permanent resident status based on his second marriage to Jean Pauline Njeri Njeru. Based on this application, which was ultimately approved, the Board of Immigration Appeals (“BIA”) approved his motion to reopen. However, Macharia still faced a problem. At a hearing, Macharia testified that he had misrepresented that he was authorized to work in the United States. Therefore, before his application could be considered, he needed to be granted a waiver under § 212(i) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(i). That provision allows the Attorney General, in his discretion, to grant a waiver if “refusal of admission . . . would result in extreme hardship to the citizen or lawful resident spouse.” 8 U.S.C. § 1182(i) (pertaining to admission of an immigrant otherwise inadmissible for fraud or willful misrepresentation of material fact). The Immigration Judge (“IJ”) considered his application, his supporting evidence, and the testimony of both Macharia and his wife. Macharia argued that his wife would suffer extreme hardship due to, among other factors, the family’s finances, the fact that medical conditions of both her (uterine fibroids) and the couple’s son (asthma) could not be adequately treated in Kenya, and the lack …

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