Okereke v. Atty Gen USA

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-29-2008
Okereke v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3612
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-3612
_______________
HARRY OKEREKE,
Petitioner
v.
ATTORNEY GENERAL OF UNITED STATES,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A70-651-555)
Immigration Judge Alberto Riefkohl
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 8, 2008
Before: FUENTES and JORDAN, Circuit Judges
and DITTER*, District Judge.
(Filed: January 29, 2008)
_______________
OPINION OF THE COURT
_______________
_______________
*Honorable J. William Ditter, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.
Harry Okereke (“Okereke”) petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) refusing to waive the limitations period applicable to his
motion to reopen. Because we lack jurisdiction to review the BIA’s discretionary refusal
to grant the waiver, we will deny the petition for review.
Background
Okereke is a citizen of Nigeria who entered the United States in 1989. In June
2000, the Government served him with a Notice to Appear charging him with overstaying
his visa. In June 2001, Okereke married a United States citizen, with whom he now has
two children and a stepdaughter. On November 14, 2001, he failed to appear at his
immigration hearing and the Immigration Judge (“IJ”) ordered him removed in absentia.
Okereke filed an appeal of the IJ's decision, which was denied by the BIA as untimely.
Okereke then filed two subsequent motions to reopen his case, both of which were denied
by the IJ. In August 2003, the BIA affirmed the IJ's decision denying the second motion
to reopen, and upheld the order of removal.
Okereke, however, failed to depart and was arrested several years later, in 2006,
by agents from United States Immigration and Customs Enforcement. Once in custody,
he filed a motion with the BIA to reopen his case pursuant to provisions of the Violence
Against Women Act (“VAWA”) which have been codified as part of the Immigration
and Nationality Act (“INA”). 8 U.S.C. § 1229a(c)(7)(C)(iv). Okereke’s motion included
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affidavits detailing numerous instances of physical and psychological abuse allegedly
perpetrated against him by his wife, as well as evidence that he is the primary means of
support for his minor children. The BIA denied the motion to reopen, noting that it had
been filed outside the one year time limit applicable to motions to reopen that invoke the
VAWA. The BIA also refused to waive the one year time limit, stating that Okereke had
“presented no evidence as to any extraordinary circumstances or extreme hardship to a
child, to cause us to exercise favorable discretion in this instance.” Okereke then filed
the petition for review that is now before us.1
Discussion
Under the VAWA, aliens who are subject to a final order of removal but who are
victims of spousal abuse may file a motion to reopen their immigration proceedings and
apply for cancellation of removal if they can demonstrate that they have been “battered”
or that they have been “the subject of extreme cruelty perpetrated by the [their]
spouse[s].” 8 U.S.C. §§ 1154(a)(iii)(1)(bb), 1229b(b)(2). Ordinarily, such motions must
be filed within a year of the issuance of a final order of removal. 8 U.S.C.
§ 1229a(C)(7)(iv). However, the VAWA provides that “the Attorney General may, in
the Attorney General's discretion, waive this time limitation in the case of an alien who
1
As explained more fully in this opinion, we conclude that Okereke’s petition fails
based on the jurisdiction stripping provisions of 8 U.S.C. § 1252(a)(2). Our review of our
own jurisdiction is de novo. Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir. 2002).
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demonstrates extraordinary circumstances or extreme hardship to the alien's child.”
8 U.S.C. § 1229a(C)(7)(iv)(III) (emphasis added).
Okereke filed his motion five years after he was ordered removed, and the BIA
declined to grant him a waiver. In his petition for review, Okereke contends that, in
refusing to grant him a waiver, the BIA erred because the spousal abuse he has suffered is
an “extraordinary circumstance” and his inability to support his children, if he is removed,
constitutes “extreme hardship” to his children.
We lack jurisdiction to review the BIA’s denial of a waiver of the one-year time
limit. With the exception of denials of asylum, the INA removes from our jurisdiction
“any ... decision or action of the Attorney General ... the authority for which is specified
under this subchapter to be in the discretion of the Attorney General.” 8 U.S.C.
§ 1252(a)(2)(B)(ii).2 In Alaka v. Attorney General, 456 F.3d 88, 96-95 (3d Cir. 2006), we
explained that § 1252's jurisdictional bar applies only “to a narrow[] category of decisions
where Congress has specif[ied] that the sole authority for the action is the Attorney
General’s discretion.” Id. at 96. As examples of statutory language which will trigger the
jurisdictional bar, we cited various provisions of the INA which include explicit
references to the Attorney General’s discretion. Id. at 98 n.16. We also stated that while
2
Section 1229a is part of the subchapter referred to in § 1252(a)(2). See CDI
Information Svcs., Inc. v. Reno, 278 F.3d 616, 619 (6th Cir. 2002) (explaining that “this
subchapter” refers to “subchapter II of Chapter 12 of Title 8, which covers sections 1151
through 1378”).
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“explicit use of language granting discretion–such as ‘the Attorney General may, in his
discretion’–would presumably trigger the application of [the jurisdictional bar,]” such
language is not absolutely required before the bar applies. Id. at 98.
We conclude that the cited language from the VAWA, 8 U.S.C.
§ 1229a(C)(7)(iv)(III), does trigger the jurisdictional bar of § 1252(a)(2). Like the INA
provisions we cited in Alaka, 456 F.3d at 98 n.16, it explicitly specifies that a decision to
waive the one-year limitations period is made at the Attorney General’s “discretion.”
Moreover, its language is virtually identical to the language which, under Alaka, 456 F.3d
at 98, is sufficient to trigger the bar. Thus, we lack jurisdiction to review the BIA’s
decision to deny Okereke a waiver.
Accordingly, we will deny the petition for review.3
3
We ordinarily do not consider arguments which are raised for the first time in a
petitioner’s reply brief. In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003). Therefore, we
decline to consider Okereke’s argument that we should review the BIA’s decision under
8 U.S.C. § 1252(a)(2)(D), which permits us to review “constitutional claims and issues of
law.”
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