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Omotayo Ajayi v. Atty Gen USA ( 2012 )


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  •                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-3012
    ___________
    OMOTAYO AJAYI,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES
    Respondent
    ____________________________________
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A089-087-446)
    Immigration Judge: Honorable Dorothy Harbeck
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 18, 2012
    Before: FISHER, WEIS and BARRY, Circuit Judges
    (Opinion filed: July 27, 2012)
    ___________
    OPINION
    ___________
    PER CURIAM.
    Omotayo Ajayi petitions for review of the Board of Immigration Appeals‟
    (“BIA”) final order of removal. We grant the petition, vacate the final order of
    removal, and remand to the BIA.
    1
    This matter comes before us with a detailed factual record by the
    Immigration Judge (“IJ”) who had access to independent sources of corroborating
    evidence not often available in such determinations. The BIA reversed in a very
    brief opinion that failed to meet the thorough analysis prepared by the IJ. As we
    have commented on prior occasions, the BIA may not, consistent with due process,
    base its decision on only one or two facts plucked from the record. See, e.g.,
    Huang v. Att’y Gen., 
    620 F.3d 372
    , 388-89 (3d Cir. 2010).
    A review of the background reveals the following. Ajayi, a native of
    Nigeria, came to the United States in 1989 on a visitor‟s visa and overstayed the
    six months permissible time. Both of his parents are naturalized United States
    citizens. In 2001 Ajayi married a United States citizen; he and his wife have three
    children, each of whom is a United States citizen. He continued his education
    while in this country, earning both bachelor‟s and master‟s degrees in business.
    Ajayi has been gainfully employed throughout most of his time here. He has
    supported his wife and children and has opened his home to assist his wife‟s
    family. He has encouraged his wife‟s continuing education and has actively
    contributed to his community through his church work. With the sole exception of
    a misdemeanor for failing to notify the government of his change of address, he
    has no criminal record.
    2
    For several years prior to the immigration proceedings, Ajayi had been
    eligible to become a lawful permanent resident both by virtue of his parents‟
    citizenship and, later, by his marriage to a United States citizen. Indeed, a Form I-
    130 Alien Relative Petition had been filed on his behalf by his parents and was
    approved. However, for reasons not apparent in the record, he neglected to adjust
    his status.
    Ajayi‟s problems with the immigration authorities began when he attempted
    to obtain a passport so he could travel to England for the funeral of his uncle, to
    whom he was deeply attached. Perhaps anticipating the successful completion of
    the Form I-130 procedures, and needing to travel quickly, he represented in his
    passport application that he was a United States citizen. He also told North
    Carolina authorities that he had been born in Charlotte, North Carolina in his effort
    to secure the travel document. The Department of Homeland Security (“DHS”)
    subsequently brought criminal proceedings against him for misrepresenting his
    citizenship.
    Ajayi was indicted for falsely claiming citizenship, but after negotiations in
    the District Court he entered into a plea agreement pursuant to which he pleaded
    guilty to a lesser misdemeanor charge of failing to report his change of address to
    the immigration officials and DHS dropped all other charges. The able and
    3
    experienced District Court Judge expressed her view that, in light of Ajayi‟s
    otherwise unblemished record and his ability to adjust his status, his
    misrepresentation of citizenship was among the “dumbest” things she had
    encountered in her lengthy service on the bench. After reviewing the favorable pre-
    sentence report, she imposed a sentence of five days time served, one year
    supervised release and a fine of two hundred dollars (payable at a rate of twenty
    dollars per month). The District Judge also suggested that the probation officers
    provide assistance to Ajayi in managing his finances.
    Shortly after Ajayi was sentenced, DHS began removal proceedings.
    Conceding that he was removable for overstaying his visa, Ajayi applied for
    cancellation of removal.
    In a detailed and reasoned opinion, the IJ concluded that Ajayi met all four
    requirements to be eligible for cancellation of removal. In relevant part to this
    appeal, she determined that despite his misdemeanor conviction and his
    misrepresentations of citizenship, the totality of Ajayi‟s circumstances
    demonstrated that he was a person of “good moral character” during the requisite
    time period, as required by 8 U.S.C. §1229b(b)(1)(B). She expressed some
    misgivings as to his misrepresentations of citizenship but concluded, after
    reviewing his conduct for approximately twenty years in this country, and taking
    4
    into account his candor in admitting that he had also misrepresented his citizenship
    so he could obtain employment and later a mortgage, his behavior on the whole
    and his credible remorse for his actions established his good character. “[B]ased
    on a totality of the circumstances and the other factors in [Ajayi‟s] record, and
    given the fact that [Ajayi] certainly appears to be very remorseful of this, although
    this Court does not evaluate remorse, in this specific case, I do think that [Ajayi]
    has shown that he is a person of good moral character. … [B]ased on a balancing
    of these positive and negative factors, the Court makes a determination that [Ajayi]
    is a person of good moral character.”1 Accordingly, the IJ granted Ajayi‟s
    application for cancellation of removal.
    For reasons not disclosed in the record, DHS decided to appeal the IJ‟s
    decision. The BIA issued a cursory opinion with no consideration given to the
    majority of the factors relied upon by the IJ going to Ajayi‟s good moral character,
    including the favorable and detailed pre-sentencing report. The Board said that
    because Ajayi had misrepresented his citizenship while applying for a passport, he
    was not of good moral character and was therefore ineligible for cancellation of
    removal. The Board reversed the cancellation of removal and ordered Ajayi
    1
    The IJ also went on to find that removing Ajayi would result in an extreme
    hardship to his wife and children, another required element of eligibility for
    cancellation of removal.
    5
    removed to Nigeria. Ajayi filed a timely appeal.
    We have jurisdiction to review a final order of removal under 
    8 U.S.C. § 1252
    (a)(1). See Abdulai v. Ashcroft, 
    239 F.3d 542
    , 547 (3d Cir. 2001). In this
    case, the government challenges our jurisdiction to review the BIA‟s discretionary
    decision to deny Ajayi cancellation of removal, citing 
    8 U.S.C. §1252
    (a)(2)(B)(i).
    However, pursuant to a provision added to the statute in 2005, nothing in that
    section “shall be construed as precluding review of constitutional claims or
    questions of law raised on a petition for review filed with an appropriate court of
    appeals.” 
    8 U.S.C. §1252
    (a)(2)(D)(the “Savings Section”). Read reasonably, the
    statutory language implies that the actual decision to remove is one committed to
    the Attorney General, but preservation of the alien‟s constitutional and statutory
    rights is within the domain of the courts.2 Thus, we conclude that we retain
    jurisdiction to hear Ajayi‟s appeal for the purpose of considering and ruling upon
    the process by which the BIA reached its decision, i.e., the process by which the
    BIA reviewed the facts of record and weighed the competing equities.
    BIA‟s truncated review of the record and its selective reliance on only a few
    2
    Mendez-Moranchel v. Ashcroft, 
    338 F.3d 176
     (3d Cir. 2003) limited our
    jurisdiction in certain discretionary matters but the Savings Section amendment
    two years later made it clear that the courts retained jurisdiction over statutory and
    constitutional interpretation.
    6
    factors pertinent to a determination of “good moral character” is inadequate. The
    determination of an individual‟s character requires a thoughtful balancing of a
    multitude of factors and gauging whether, as a whole, that individual‟s conduct is
    consistent with current ethical standards. It is a case-by-case determination that
    cannot be shortcut by pigeon-holing. As observed by a highly respected panel
    when considering the test for good moral character for naturalization purposes, “it
    is a test incapable of exact definition; the best we can do is to improvise the
    response that the „ordinary‟ man or woman would make, if the question were put
    whether the conduct was consistent with a „good moral character‟.” Posusta v.
    United States, 
    285 F.2d 533
    , 535 (2d Cir. 1961) (Circuit Judges Hand, Friendly,
    and Clark).
    The question before the IJ and later the BIA is whether Ajayi‟s conduct in
    misrepresenting his citizenship -- set against his prior history of being a productive
    member of his community -- falls below the standards of an average citizen. That
    characterization must be determined in context. The BIA has itself acknowledged
    that misrepresentations of citizenship alone do not necessarily preclude a showing
    of good moral character. See Matter of Guadarrama, 24 I & N Dec. 625 (2008).
    Nowhere does the BIA refer to Ajayi‟s history in his community, his more than
    twenty productive and law abiding years in this country, his close family ties in the
    7
    United States, or the exigencies of his uncle‟s death which surrounded his attempt
    to obtain a passport. Furthermore, nowhere does the BIA provide an explanation
    of why the record in full warrants a different conclusion from that reached by the IJ
    who considered, inter alia, all of the equities favoring Ajayi.
    Our opinion in Huang, 
    620 F.3d at 388-89
    , requires that the BIA
    meaningfully consider and address the equities that favor Ajayi. Without doing so,
    its decision cannot stand.
    For the reasons set forth above, we remand to the BIA for further
    proceedings consistent with this opinion.
    8