Opie v. I.N.S. ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-41220
AGBAI UDEOCHU OPIE,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
(October 2, 1995)
Before POLITZ, Chief Judge, HILL1 and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
"Robert" Agbai Udeochu Opie seeks review of a final order of
the Board of Immigration Appeals which denies (1) his request for
adjustment of immigration status, (2) his application for waiver of
deportation, and (3) his request for voluntary departure.
We AFFIRM.
1
Circuit Judge of the Eleventh Circuit, sitting by
designation.
1
BACKGROUND
On a date prior to April 30, 1988, Nigerian citizen "Robert"
Agbai Udeochu Opie ("Opie") applied for a business visa to the
United States. During the application process, Opie indicated that
the purpose of his trip was to initiate an import/export business
between the United States, Togo, and Nigeria. Specifically, he
told the consular office that he planned to travel to Hollywood,
California, where he intended to do business. He also stated that
he was bringing $10,000 for the purpose of purchasing merchandise
and facilitating business. On his visa application, Opie stated
that he was married.
On April 30, 1988, Opie was admitted into the United States as
a business visitor. His business visa allowed him to remain in the
United States until July 14, 1988. Opie does not contest that he
remained in the United States beyond July 14, 1988.
On December 7, 1988, Opie married an American citizen, Bertha
Branch, in Dallas County, Texas. Opie lived with Branch and
Branch's two children from a prior marriage.
On June 8, 1989, Opie was arrested for the unauthorized use of
a credit card. He was convicted in a Texas state court and
sentenced to probation for a term of four years. The state trial
court judge issued a Judicial Recommendation against Deportation.
2
On April 5, 1989, Opie filed a Petition for Alien Relative and
an Application for Permanent Residence.2 Opie also applied for (1)
a waiver of inadmissibility pursuant to § 212(h) and § 212(i) of
the Immigration and Nationality Act (the "ACT"), (2) an adjustment
of his status to that of permanent resident pursuant to § 245 of
the Act, and (3) a voluntary departure pursuant to § 244(e) of the
Act.
On June 8, 1989, the Immigration and Naturalization Service
("INS") issued to Opie an order requiring him to show cause why he
should not be deported.
On July 11, 1990, a hearing on the merits was held before an
immigration judge. The immigration judge ("IJ") found Opie to be
deportable under § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2),3
because he was a nonimmigrant alien who remained in the United
States longer than permitted. The IJ denied Opie's requests for
waiver of inadmissibility under §§ 212(h) and (i) of the Act and
found that he was not eligible for an adjustment of status or
voluntary departure under §§ 245 and 244(e) of the Act,
respectively. The IJ ordered Opie to be deported to Nigeria.
On October 6, 1994, the Board of Immigration Appeals ("BIA")
affirmed the immigration judge and dismissed Opie's appeal. The
Board of Immigration Appeals' order was a final order.
Opie timely filed an appeal to this Court.
2
Opie's Alien Relative petition was approved on July 10,
1990.
3
Revised and redesignated as § 241(a)(1)(B) by § 602 of the
Immigration Act of 1990.
3
JURISDICTION
This Court's jurisdiction arises under § 106 of the
Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §
1105(a). The Act grants jurisdiction to the court of appeals to
review final orders of deportation made against aliens within the
United States.
DISCUSSION
On appeal, Opie does not contest his deportability. Rather,
he contests the BIA's denial of his requests for relief from
deportation. Specifically, Opie contends that the BIA erred in
denying his request for (1) waiver of inadmissibility under §§
212(h) and (i), (2) adjustment of status under § 245, and (3)
voluntary departure under § 244(e). Opie also contends that the
BIA erroneously considered his criminal conviction when weighing
the equities and determining his moral character. Finally, Opie
contends that the BIA erred when it held that he or his family
would have to suffer "extreme hardship" as a result of deportation
in order for him to qualify for the relief sought. We will address
each issue in turn.
"We review final orders of deportation issued by the BIA,
examining questions of law de novo, but examining factual findings,
such as a finding that an alien is not eligible for the withholding
of deportation, solely to see if such findings are supported by
substantial evidence." Fonseca-Leite v. I.N.S., 961 F.2d 60, 62
(5th Cir. 1992) (internal citations omitted). "In conducting our
reviews we are constrained to give considerable deference to the
4
BIA's interpretation of the legislative scheme it is entrusted to
administer." Id. at 62 (citing Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d
694 (1984)).
Opie contends that, with the exception of his current status
of inadmissibility which resulted from his criminal conviction, he
meets the eligibility requirements for adjustment of status under
§ 245 of the Act. Further, Opie argues that his inadmissibility
should be waived under the discretionary provisions of either §
212(h) or § 212(i) of the Act. Opie claims that, in denying him a
waiver of inadmissibility, the BIA placed inordinate weight on the
falsehoods in his nonimmigrant visa application and failed to give
sufficient weight to the hardships that he says he and his family
will suffer if he is deported. He argues that the hardships
flowing from his deportation are extreme and, coupled with his
positive equities in the United States, outweigh his criminal
conviction and the falsehoods he made to gain admittance into the
United States. Opie also contends that the state court judicial
recommendation against deportation ("JRAD") estops the IJ and BIA
from considering his conviction as a factor in the eligibility
determination for voluntary departure. He claims that he
demonstrated good moral character through evidence of family ties,
community commitment, employment, and tax payments. Such equities,
he claims, outweigh his conviction and falsehoods.
5
Waiver
The IJ found, and the BIA agreed, that Opie was ineligible for
waiver under §§ 212 (h) and (i). Opie contends that their
respective decisions are not supported by the evidence. Respondent
has the burden of both establishing that he is statutorily eligible
for the requested relief from deportation and that he merits a
favorable exercise of discretion. 8 C.F.R. § 242.17(e). "We limit
our review to whether denial of a waiver was arbitrary, irrational,
or contrary to law." Molenda v. INS, 998 F.2d 291, 293 (5th Cir.
1993) (internal citations omitted).
In reaching its determination, the BIA considered Opie's false
statements regarding his marital status, his false statements
regarding the amount of money that he was bringing with him to the
United States, the lack of effort he made towards any business
venture upon his arrival in the United States, the false statements
he made to an employer about his work eligibility, his preconceived
intent to remain in the United States without authorization, and
his criminal conviction for credit card fraud. As to equities, the
BIA considered his family ties, his relationship to his step-
children, his employment history, his tax payments, and the
hardships that would be visited upon both he and his family as a
result of deportation.
We find that Opie's claim that the BIA did not carefully
consider all of the evidence presented is not supported by the
record. In its opinion, the BIA discusses many factors which it
considered in reaching its decision. "The BIA need not write an
6
exegesis on every contention...." Ghassan v. INS, 972 F.2d 631,
636 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1412,
122 L. Ed. 2d 783 (1993) (internal citations omitted). "Rather, its
opinion must reflect that it has heard and thought and not merely
reacted." Id. at 636 (internal citations omitted). We find that
the order of the BIA evinces a careful consideration of all of the
evidence presented.
Opie also argues that the BIA applied the wrong standard when
it considered waiver under § 212 (i) of the Act. Opie contends
that the BIA erroneously applied the "extreme hardship" standard in
its § 212 (i) determination. Opie claims that the correct standard
under a § 212 (i) determination is one requiring "a showing of
unusual even outstanding equities." The government disagrees and
argues that the BIA applied a standard of balancing "hardship" and
equities.
We agree that it is unclear which standard the BIA applied in
its § 212 (i) waiver determination. However, because § 212(i) does
not expressly provide for standards governing how the Board's
discretion should be exercised, the Attorney General has unusually
broad discretion in granting or denying waivers. Molenda, 998 F.2d
at 293. Yet, regardless of which standard applies, after a careful
review of the record, we believe that the evidence supports a
denial of § 212 (i) waiver under either standard.
After carefully reviewing the record and the BIA's opinion, we
find that the BIA decision is reasoned, supported by substantial
evidence, and not arbitrary, irrational, or contrary to law.
7
Accordingly, the BIA did not abuse its discretion in denying Opie
§§ 212 (h) and (i) waiver relief.
Adjustment of Status
Opie next contends that the BIA abused its discretion by
denying his application for adjustment of status because it failed
to consider significant equities in his case. However, because
Opie did not receive a waiver of inadmissibility, he is not
entitled to an adjustment of status. 8 U.S.C. § 1255(a).
Accordingly, the BIA's denial of Opie's § 1255 request for
adjustment of status is not clearly erroneous and does not
constitute an abuse of discretion.
Voluntary Departure
Finally, Opie argues that the BIA erroneously denied his
request for voluntary departure pursuant to 8 U.S.C. § 1254(e). In
relevant part, § 1254 states,
[T]he Attorney General may, in his discretion,
permit any alien under deportation
proceedings...to depart voluntarily from the
United States at his own expense in lieu of
deportation if such alien shall establish to
the satisfaction of the Attorney General that
he is, and has been, a person of good moral
character for at least five years immediately
proceeding his application for voluntary
departure...."
8 U.S.C. § 1254(e). Relief under § 1254(e) is granted at the
Attorney General's discretion. The burden is on the party seeking
relief to show that he is entitled to it.
The immigration judge extensively reviewed the facts in this
case and found that Opie lacks the requisite good moral character
to qualify for voluntary departure. The BIA expressly affirmed the
8
IJ's finding. Upon a complete and de novo review of the record, we
find that the BIA' denial of relief for voluntary departure under
§ 1254(e) is neither clearly erroneous, nor an abuse of discretion.
Judicial Recommendation Against Deportation
Finally, Opie claims that a state trial court "Judicial
Recommendation Against Deportation," which was issued in connection
with Opie's credit card conviction, estops the BIA from considering
his criminal conviction in connection with his petitions for
waiver, adjustment of status, and voluntary departure. Opie did
not raise this issue before the administrative court.4 "We need
not consider issues raised for the first time on appeal." Insilco
Corp. v. United States, 53 F.3d 95, 100 (1995). Accordingly, we
will not consider this issue.
CONCLUSION
For the foregoing reasons, the decision of the Board of
Immigration Appeals is AFFIRMED.
4
In fact, we note that Opie held the opposite position
before the BIA. In his the brief to the BIA, Opie stated:
"Respondent acknowledges that the criminal conviction is a valid
factor for consideration in a discretionary determination."
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