Okon E. Iyamba v. INS ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-4176
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Okon E. Iyamba, *
*
Petitioner, *
*
v. * Petition for Review of
* an Order of the Immigration
Immigration and Naturalization * and Naturalization Service.
Service, Board of Immigration Appeals, *
* [PUBLISHED]
Respondent. *
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Submitted: March 6, 2001
Filed: March 9, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
This case hinges on the proof and validity of an extra-judicial customary divorce
in Nigeria. Okon E. Iyamba initially came to the United States from Nigeria on a
student visa. His status was adjusted to that of a lawful permanent resident in
September 1983 upon his marriage to an American citizen. In a 1992 order to show
cause, the Immigration and Naturalization Service charged him with deportability under
the Immigration and Nationality Act § 241(a)(1)(B) (now 8 U.S.C.
§ 1227(a)(1)(B)), alleging he was ineligible for the status adjustment because his prior
marriage to Lucy Iyamba, a Nigerian citizen, had not been legally terminated.
According to Mr. Iyamba, in 1981 he returned to Nigeria, where his father and Lucy
Iyamba’s father conducted an extra-judicial customary divorce.
The documentary evidence included Mr. Iyamba’s application for suspension of
deportation, an “Affidavit of Divorce” from Lucy Iyamba’s father, and an order from
a Nigerian magistrate. After reviewing this evidence and hearing testimony from
Mr. Iyamba, Lucy Iyamba, and one of their daughters, the Immigration Judge (IJ) found
Mr. Iyamba to be deportable, and denied his application for suspension of deportation
and his request for voluntary departure. He appealed to the Board of Immigration
Appeals (BIA) which, after conducting an independent review, dismissed the appeal.
In his petition to this court, Mr. Iyamba makes several arguments, some of which
are misdirected, as they relate to the IJ’s decision; because the BIA conducted an
independent review of the IJ’s findings, appellate review is of the BIA’s decision. See
Perez v. INS, 96 F.3d 390, 392 (9th Cir. 1996). Having reviewed the BIA’s factual
findings for substantial evidence and its legal determinations de novo, according
substantial deference to its interpretation of the statutes and regulations it administers,
we deny Mr. Iyamba’s petition. See Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.
2000) (standard of review).
Assuming an extra-judicial divorce is possible in the region of Nigeria in which
Mr. Iyamba previously lived, we nonetheless agree with the BIA’s conclusion that he
was deportable. The Nigerian magistrate’s order does not reflect that the magistrate
ascertained any steps taken to obtain the divorce, let alone the kind of steps outlined
in documents submitted to the IJ; rather, it appears to indicate only that customary
divorce is possible. The affidavit, in turn, is too conclusory to provide evidence that
the required steps for a customary divorce occurred. See Dabaase v. INS, 627 F.2d
117, 119 (8th Cir. 1980) (per curiam) (in denying petition for review of deportation
order, noting petitioner’s evidence--letters detailing his efforts to secure various forms
of evidence and “conclusory affidavit” of his Ghanaian wife asserting only that she had
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been divorced from petitioner “under the Ghanaian Tribal Native Customs Divorce”--
did not establish, inter alia, that “pertinent ceremonial procedures were followed”). We
also agree with the BIA that Mr. Iyamba’s testimony was too vague to corroborate the
documentary evidence that the required ceremonial-divorce formalities occurred. Cf.
Rucu-Roberti v. INS, 177 F.3d 669, 670 (8th Cir. 1999) (per curiam) (noting BIA’s
conclusion that asylum seeker’s “vague” testimony was insufficient to meet her burden
of proof). For example, he omitted on his suspension application the dates of his
alleged trip to Nigeria during which he contends he was divorced, he testified that his
application contained accurate dates; he provided no explanation why he divorced other
than that the marriage “didn’t work”; though he allegedly went to Nigeria for the
divorce, he could not explain what occurred there; and he provided inconsistent
testimony as to dates of other events. Cf. Hamzehi v. INS, 64 F.3d 1240, 1243-44 (8th
Cir. 1995) (because “vagueness, confusion, and inconsistencies” permeated petitioners’
testimony, they failed to establish asylum claim; while inconsistencies do not
necessarily justify denial of claims supported by more substantial evidence, weaknesses
in petitioners’ testimony were fatal because this court was left without compelling
evidence).
As to the BIA’s suspension-of-deportation determination, our precedent
forecloses Mr. Iyamba’s argument that the BIA erroneously ignored his accumulation
of physical presence in the United States after issuance of the show cause order. See
Afolayan v. INS, 219 F.3d 784, 788-89 (8th Cir. 2000) (continuous-physical-presence
clock stops and does not start anew after service of show cause order). Finally,
although Mr. Iyamba argues that the BIA erred in denying his motion to remand, no
evidence in the record suggests he even filed such a motion.
Accordingly, we deny the petition.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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