Onwuegbuzie v. Ashcroft , 80 F. App'x 904 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS November 6, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-60770
Summary Calendar
IGWEBUIKE SABASTINE ONWUEGBUZIE,
Petitioner,
versus
JOHN ASHCROFT, U S ATTORNEY GENERAL
Respondent.
Petition for Review of an Order of the Board of Immigration
Appeals
(BIA No. A75-290-783)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Igwebuike Sabastine Onwuegbuzie, a native and citizen of
Nigeria, seeks review of the decision of the Board of Immigration
Appeals (BIA), which summarily affirmed the decision of the
immigration judge (IJ). Based on Onwuegbuzie’s use of a false
document to obtain a visa, the IJ denied Onwuegbuzie’s applications
for asylum and for a waiver of deportability. See 8 U.S.C. § 1182(a) (6) (C) (i). Because the BIA used the streamlined review
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
process, we review the IJ’s decision and not that of the BIA. See
Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003).
Onwuegbuzie first contends that the BIA should not have
subjected his case to streamlined review because his case did not
meet the statutory requirements for it. Under 8 C.F.R.§
1003.1(a)(7)(ii), such review of an IJ’s decision is proper if the
single BIA member to whom the case is assigned
determines that the result reached in the
decision was correct; that any errors in the
decision under review were harmless or
nonmaterial; and that (A) the issue on appeal
is squarely controlled by existing Board or
federal court precedent and does not involve
the application of precedent to a novel fact
situation; or (B) the factual and legal
questions raised on appeal are so
insubstantial that three-Member review is not
warranted.
Onwuegbuzie further contends that our standard of review on
this issue is de novo because the BIA’s determination that
streamlined review is proper is a question of law. Although
Onwuegbuzie is correct that the standard of review is de novo, we
must give deference to the BIA in making its determination. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984); see also Carbajal-Gonzales v. INS, 78 F3d 194, 197 (5th
Cir. 1996). Therefore, we should ask “whether the agency’s answer
is based on a permissible construction of the statute” and if so,
we must defer to the agency’s interpretation. I.N.S. v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). Moreover, when the question of
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law involves internal procedures of the agency, reviewing courts
are generally not free to impose procedures if the agency has
chosen not to grant them. Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 524 (1978).
Omwuegbuzie has not met his burden to show that the BIA’s
decision is based on an impermissible construction of the statute.
Omwuegbuzie’s contention is that the IJ’s decision was not
“correct” as required by 8 C.F.R. § 1003.1 (a)(7), essentially
because he disagrees with the IJ’s factual determinations. Because
we give deference to the BIA member’s determination that the IJ’s
decision was correct, we decline to hold that this decision was
based on an impermissible construction of the statute.
Onwuegbuzie further contends that the streamlined review
process violated his due process rights. This claim is foreclosed
by our court’s recent holding that this review procedure does not
violate due process. Soadjede, 324 F.3d at 832-33.
Onwuegbuzie next asserts that the IJ applied an erroneous
standard to deny his application for a waiver of deportability. We
need not analyze this issue because, under the transitional rules
of the Illegal Immigrant Reform and Immigrant Responsibility Act of
1996 (IIRIRA), our review of the waiver decision is foreclosed.
Under the IIRIRA’s transitional rules, courts may not review the
Attorney General’s discretionary decisions over whether to suspend
deportation. IIRIRA § 309(a), § 309(c)(4), 110 Stat 3009 (30
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Sept., 1996); Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir.
2002). The transitional rules apply because the proceedings
commenced before April 1, 1997, and concluded more than 30 days
after the IIRIRA’s passage on September 30, 1996. IIRIRA § 309
(c)(4)(E); Omagah, 288 F.3d at 258.
Onwuegbuzie next asserts that the IJ erred in denying asylum
based on the IJ’s finding that Onwuegbuzie did not demonstrate
persecution, or a well-founded fear or future persecution, in
Nigeria. This court will uphold the factual finding that an alien
is not eligible for asylum if it is supported by substantial
evidence, which requires only that the decision be based on the
evidence presented and be substantially reasonable. See, e.g.,
Carbajal-Gonzales v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Here,
substantial evidence supports the IJ’s finding that, although
Onwuegbuzie suffered some episodes of mistreatment, the
mistreatment did not rise to the level of persecution. See Jukic v.
INS, 40 F.3d 747, 749 (5th Cir. 1994). With respect to future
persecution, there is also substantial evidence in the record that
the situation in Nigeria has improved and that Onwuegbuzie does not
have a well-founded fear of such persecution.
AFFIRMED
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