Eyoum v. INS , 125 F.3d 889 ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-60836
(Summary Calendar)
_________________
ROLAND FELIX EYOUM,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
September 16, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Roland Felix Eyoum (“Eyoum”), proceeding pro se, petitions for
review of an order of the Board of Immigration Appeals (“BIA”)
finding him deportable for remaining in the United States beyond
the time permitted by his visa and denying him permission to
voluntarily depart the United States. We dismiss Eyoum’s claim
regarding voluntary departure for lack of subject matter
jurisdiction and affirm the BIA on all other claims.
I
Eyoum, a native and citizen of Cameroon, entered the United
States legally in July 1993 as a nonimmigrant for a period of six
months or one year, a period that was subject to extension.1
Eyoum’s admission was classified as B-2 or “for pleasure,” which
meant that he could not pursue employment in the United States.
Eyoum nonetheless operated an import/export business in the United
States, as well as overstayed his visa.
In 1995, Eyoum pleaded guilty to illegally importing pancake
tortoises in violation of 18 U.S.C. § 545. The court sentenced him
to twelve months and one day in custody, three years’ probation,
and a $50 special assessment. Eyoum claimed that he was required
to serve only ten months and two weeks of the sentence. The
sentence was on appeal to the United States Court of Appeals for
the Seventh Circuit during Eyoum’s initial immigration proceedings
before the immigration judge (“IJ”). The Seventh Circuit has since
affirmed Eyoum’s sentence. United States v. Eyoum, 84 F.3d 1004
(7th Cir.), cert. denied, __ U.S. __, 117 S. Ct. 326, 136 L. Ed. 2d
240 (1996).
The Immigration and Naturalization Service (“INS”) brought
deportation proceedings against Eyoum, alleging that he was
deportable under both 8 U.S.C. § 1251(a)(1)(B) (overstaying a visa)
and under 8 U.S.C. § 1251(a)(2)(A)(i) (conviction of a crime of
moral turpitude). The IJ ruled orally at Eyoum’s deportation
hearing that the evidence did not support the charge of
deportability under § 1251(a)(2)(A)(i) because Eyoum’s sentence was
1
The INS alleged that Eyoum had originally had a one-year
authorization. Eyoum, however, claimed at his deportation hearing
that he had been admitted for only six months.
-2-
on appeal, and thus it was unclear whether Eyoum’s sentence would
ultimately be greater than one year, the temporal requirement for
deportation based on conviction of a crime of moral turpitude. The
IJ also concluded, however, that Eyoum was deportable because he
had overstayed his visa. In so finding, the IJ rejected Eyoum’s
argument that § 245(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1255, permitted him to adjust his status to
prevent a finding that he was deportable. The IJ also determined
that Eyoum was not entitled to any form of relief from deportation.
On appeal, the BIA concluded that the crime of which Eyoum was
convicted did not involve moral turpitude because Eyoum’s
importation of pancake turtles was illegal only because he had
failed to complete the proper paperwork. The BIA thus held that
Eyoum’s crime did not render him deportable or inadmissible.
However, the BIA determined that Eyoum was deportable for
overstaying his visa. The BIA also found that Eyoum was not
eligible for voluntary departure because his ten-month
incarceration demonstrated that he lacked the necessary good moral
character to qualify for voluntary departure. Eyoum petitions for
review of the BIA’s decision.
II
We will affirm an order of deportation issued by the BIA if
supported by reasonable, substantial and probative evidence on the
record considered as a whole. Carbajal-Gonzalez v. INS, 78 F.3d
194, 197 (5th Cir. 1996). We review findings of fact for
substantial evidence. Id. We will affirm the Board’s findings of
-3-
fact unless the alien can show that the evidence in his favor was
so compelling that no reasonable factfinder could conclude against
it. Id. We review conclusions of law de novo, but defer to the
BIA’s interpretation of ambiguous statutory provisions. Id.
Eyoum challenges the BIA’s determination that he is not
entitled to voluntary departure. Under the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
No. 104-208, 110 Stat. 3009, we lack jurisdiction to review claims
for discretionary relief, including claims regarding voluntary
departure. 8 U.S.C. § 1252(a)(2)(B) (referring to 8 U.S.C. §
1229c); IIRIRA § 309(c)(4)(E). Because the BIA entered its final
order in Eyoum’s case on November 27, 1996, we lack jurisdiction to
review his claim that the BIA erred in denying his request for
voluntary departure. See Choeum v. INS, Nos. 96-1446, 97-1552,
1997 WL 356365, at *12 (1st Cir. July 2, 1997) (explaining that
IIRIRA’s transitional rules make jurisdiction-stripping provision
applicable to all aliens in proceedings on April 1, 1997 for whom
a final order of exclusion or deportation was entered more than
thirty days after September 30, 1996).2
Eyoum argues that he qualifies for an adjustment of status
2
Moreover, Eyoum cannot demonstrate that he possesses the
good moral character required for voluntary departure. See 8
U.S.C. § 1101(f)(7) (“For the purposes of this chapter))No person
shall be regarded as, or found to be, a person of good moral
character who, during the period for which good moral character is
required to be established, is, or was))one who during such period
has been confined, as a result of conviction, to a penal
institution for an aggregate period of one hundred and eighty days
or more, regardless of whether the offense, or offenses, for which
he has been confined were committed within or without such period
. . . .”).
-4-
pursuant to § 245(i) of the INA, 8 U.S.C. § 1255, because he is
entitled to a visa as an alien entrepreneur. Eyoum’s argument
fails for two reasons. First, even if he qualified as an alien
entrepreneur, he would not be entitled to adjustment of status
pursuant to § 245(i) because he never applied for an adjustment.
Second, Eyoum incorrectly assumes that he qualifies as an alien
entrepreneur. To qualify, an alien must demonstrate that he has
established a commercial enterprise in which he has invested
$500,000 to $1,000,000, and that the enterprise will create full-
time employment for not fewer than ten American citizens or lawful
permanent residents. 8 U.S.C. §§ 1153(b)(5)(A), 1153(b)(5)(C)(i)
and (ii). Eyoum’s business does not satisfy these requirements
because, as Eyoum admitted, he has invested only $100,000 in the
enterprise and the record contains no evidence that the enterprise
has created any jobs.
Eyoum also argues that his eligibility for admission as a
“treaty investor” requires that his nonimmigrant status be adjusted
pursuant to 8 C.F.R. § 248.1. However, as the BIA explained, Eyoum
never applied for status as a treaty investor. In any event,
because Eyoum’s previous immigrant status expired, he does not
qualify for a change in status. See 8 C.F.R. § 248.1(b) (“A change
in status may not be approved for an alien who failed to maintain
the previously accorded status or whose status expired before the
application or petition was filed . . . .”).
The regulation contains an exception for aliens who
demonstrate, among other things, that the failure to file a timely
-5-
petition was due to “extraordinary circumstances beyond the control
of the applicant or petitioner,” 8 C.F.R. § 248.1(b)(1), and that
the alien “has not otherwise violated his or her nonimmigrant
status.” 8 C.F.R. § 248.1(b)(2). Even if Eyoum could demonstrate
extraordinary circumstances that prohibited his filing of a timely
petition, he violated his nonimmigrant status by engaging in
commerce while in the United States on a pleasure visa. Cf. Patel
v. INS, 811 F.2d 377, 383 (7th Cir. 1987) (explaining that BIA “is
entitled to take dim view of nonimmigrant aliens who work without
permission in violation of their nonimmigrant status”).
Relying on In re Garcia, 16 I. & N. Dec. 653 (Dec. 27, 1978),
Eyoum last contends that the BIA erred in failing to postpone his
deportation hearing pending a decision by the BIA regarding his
claim for adjustment of status. Because Eyoum never submitted an
application for an adjustment in status and because, had he done
so, he was ineligible for an adjustment in status to that of alien
entrepreneur, Eyoum’s argument that the deportation hearing should
have been stayed lacks merit. See Garcia, 16 I. & N. Dec. at 657
(“It clearly would not be an abuse of discretion for the
immigration judge to summarily deny a request for a continuance or
a motion to reopen upon his determination that the visa petition is
frivolous or that the adjustment application would be denied on
statutory grounds or in the exercise of discretion notwithstanding
the approval of the petition.”).
We DISMISS Eyoum’s claim for voluntary departure, AFFIRM the
decision of the Board of Immigration Appeals and we DENY Eyoum’s
-6-
motion for bond.
-7-