Aisha Rashidatu King v. Merrick B. Garland, United States Attorney General

United States Court of Appeals
For the Eighth Circuit
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No. 22-2166
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Aisha Rashidatu King
Petitioner
v.
Merrick B. Garland, United States Attorney General
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 10, 2023
Filed: June 14, 2023
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Aisha King petitions for review of the Board of Immigration Appeals’s denial
of her waiver of inadmissibility. We deny in part and dismiss in part.

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I.
King, a citizen of Sierra Leone, became a lawful permanent resident of the
United States in 2010. From 2007 to 2011, King and her husband ran a health care
facility where they engaged in a scheme to defraud Medicaid. King was convicted
of conspiracy to commit health care fraud, 18 U.S.C. § 1349, health care fraud, 18
U.S.C. § 1347 and 2, and aggravated identity theft, 18 U.S.C. § 1028A.
In 2019, the Department of Homeland Security charged King with
removability for two counts of being an aggravated felon, 8 U.S.C.
§ 1227(a)(2)(A)(iii), and for having been convicted of a crime involving moral
turpitude within five years of being admitted to the United States, 8 U.S.C.
§ 1227(a)(2)(A)(i). King conceded her removability, making her inadmissible to the
United States and subject to deportation. Seeking relief from removal, King applied
for a waiver of inadmissibility. To qualify for the waiver, King needed to
demonstrate statutory eligibility and that the equities warranted a favorable exercise
of discretion. See 8 U.S.C. § 1182(h)(1)(B); Palmer v. INS, 4 F.3d 482, 487 (7th
Cir. 1993).
The Immigration Judge denied King’s application. In addition to finding King
statutorily ineligible, the IJ denied King’s application as a matter of discretion. King
appealed the IJ’s discretionary denial, and the BIA affirmed. After balancing the
appropriate factors, the BIA held that King’s positive equities did not outweigh her
negative equities. We consider the discretionary denial of King’s application on
appeal.
II.
The Government argues that we lack jurisdiction to review King’s petition.
In cases like this one, the criminal-alien bar and the discretionary-relief bar strip us
of jurisdiction. See 8 U.S.C. § 1182(a)(2)(A)(i) (criminal-alien bar); 8 U.S.C.
§ 1252(a)(2)(B)–(C) (discretionary-relief bar). But both provisions have an
exception for questions of law. See 8 U.S.C. § 1252(a)(2)(D); see also Kassim v.

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Barr, 954 F.3d 1138, 1140 (8th Cir. 2020). To evaluate whether King’s petition
raises a reviewable question of law, we look to the “nature of the argument advanced
in the petition.” Sharif v. Barr, 965 F.3d 612, 619 (8th Cir. 2020) (citation omitted).
A.
First, King argues that the BIA failed to consider hardship to her relatives as
one of her positive equities. King’s challenge is a reviewable question of law, but it
is without merit. See Champion v. Holder, 626 F.3d 952, 956–57 (7th Cir. 2010)
(noting that the BIA’s failure to “consider factors acknowledged to be material . . .
would be an error of law” (citation omitted)). Although the BIA did not include
hardship to King’s relatives when it listed King’s positive equities, it still considered
hardship in its decision. The BIA recognized that King’s removal would “likely
result in a considerable level of hardship to herself, her spouse, and her children.”
We therefore deny King’s petition on this ground.
B.
King next argues that the BIA should not have placed dispositive weight on
her crimes. King explains that when the BIA considered the “nature, recency, and
seriousness” of her crimes, Mendez-Moralez, 21 I. & N. Dec. 296, 301 (BIA 1996),
it failed to appreciate that every applicant for waiver is necessarily implicated in
criminal behavior.1 She characterizes this as legal error: that the BIA erred in its
interpretation of the waiver of inadmissibility statute, 8 U.S.C. § 1182(h). We
disagree. At its core, King challenges the BIA’s weighing of equities, specifically
how it weighed her crimes. This is not a reviewable question of law. It is a challenge
to “the discretionary conclusion of not meriting a favorable exercise of discretion,”
which we do not have jurisdiction to review. Guled v. Mukasey, 515 F.3d 872, 880
1 We note that there are many grounds of inadmissibility subject to waiver
under § 1182(h) that do not require a criminal conviction. We also note that the
“nature, recency, and seriousness” of a crime is different for every person seeking
relief.

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(8th Cir. 2008); see Sharif, 965 F.3d at 621 (a petitioner cannot “create jurisdiction
by cloaking an abuse of discretion argument in . . . legal garb” (citation omitted)).
III.
For the reasons stated above, King’s petition is denied in part and dismissed
in part.
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