431 F.3d 400 (4th Cir. 2005), 04-2253, Obioha v. Gonzales

Docket Nº:04-2253.
Citation:431 F.3d 400
Party Name:Adaobi Stella OBIOHA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Case Date:December 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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431 F.3d 400 (4th Cir. 2005)

Adaobi Stella OBIOHA, Petitioner,

v.

Alberto R. GONZALES, Attorney General, Respondent.

No. 04-2253.

United States Court of Appeals, Fourth Circuit.

December 8, 2005.

Argued: September 21, 2005

On Petition for Review of an Order of the Board of Immigration Appeals. A28-955-050.

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[Copyrighted Material Omitted]

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COUNSEL

ARGUED:

Jim Tom Haynes, Washington, D.C., for Petitioner.

Michael John Frank, UNITED STATES DEPARTMENT OF JUSTICE, Office of Legal Policy, Washington, D.C., for Respondent.

ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration

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Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before KING and GREGORY, Circuit Judges, and R. Bryan HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

OPINION

GREGORY, Circuit Judge:

Adaobi Stella Obioha ("Obioha") challenges the decision of the Board of Immigration Appeals ("BIA") denying her motion to remand. Obioha seeks remand so that she can pursue cancellation of removal as a nonpermanent resident before the Immigration Judge ("IJ"). As an initial matter, we conclude that we possess jurisdiction to review the denial of Obioha's motion to remand. Upon examining the record and the applicable law, we find that the BIA did not abuse its discretion in denying this motion and that Obioha was not denied the due process of law. Therefore, we deny her petition for review and affirm the BIA's decision.

I.

Obioha was born in Nigeria in 1959. She entered the United States in 1986 to complete her medical residency at a U.S. hospital. She has six children, aged 8 to 18, with her former husband and Nigerian citizen, George Udeozor.

In 1987, while still married to Udeozor, Obioha married U.S. citizen Eric Loyd. On several occasions between 1987 and 1991, Obioha falsely reported to the Immigration and Naturalization Service ("INS") in sworn documents or under penalty of perjury that she had divorced Udeozor and that she had no children. Based upon these misrepresentations, the INS upgraded Obioha's status over time from an alien to an alien relative, and eventually to a lawful permanent resident. Thereafter, Obioha and Loyd divorced, and she resumed her marriage to Udeozor, which continued until their divorce in 2003.

The INS discovered Obioha's fraud in 1999 when she truthfully declared in an application for naturalization that she had six children. On October 12, 1999, the INS commenced removal proceedings through issuance of a notice to appear. The notice charged that Obioha was subject to removal for procuring entry or status by fraud or misrepresentation.

Obioha admitted both the fraud and removability before the IJ. On January 12, 2000, she applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), which requires that the alien be "lawfully admitted for permanent residence." At that time, Obioha could have sought cancellation of removal as a nonpermanent resident under 8 U.S.C. § 1229b(b), but chose not to do so.1 On November 15, 2001, the INS moved to pretermit Obioha's application for relief from removal, arguing that because her continued presence had been achieved through fraud, she was not "lawfully

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admitted for permanent residence." On August 13, 2002, the IJ agreed with the INS's position and pretermitted Obioha's application, granting her voluntary departure.

Obioha timely appealed the IJ's decision to the BIA. On January 8, 2003, while Obioha's appeal was still pending, the BIA decided In re Koloamatangi, 23 I & N Dec. 548 (BIA 2003), which contained facts very similar to those of Obioha's case. In Koloamatangi, the BIA held that an alien who had procured status as a permanent resident through fraud could not qualify for cancellation of removal under 8 U.S.C. § 1229b(a). 23 I & N Dec. at 549. Because it appeared that the alien involved was eligible for cancellation of removal as a non-permanent resident under 8 U.S.C. § 1229b(b), the BIA remanded his case to the IJ to consider that relief. Id. at 552.

In light of the Koloamatangi decision, Obioha moved to remand her case to the IJ so that she likewise could apply for cancellation of removal as a nonpermanent resident under 8 U.S.C. § 1229b(b). Obioha's one-page motion indicated that Koloamatangi cut off her first theory of relief, but the motion did not address any of the reasons why she would be entitled to relief under her new theory. See J.A. 9. The Department of Homeland Security ("DHS"), successor to the INS, opposed remand on the basis that Obioha had failed to submit necessary documentation and had not demonstrated prima facie eligibility for relief in her motion.2 On September 9, 2004, the BIA rendered its decision on Obioha's appeal and motion to remand. Citing Koloamatangi, it adopted and affirmed the IJ's decision to deny cancellation of removal under 8 U.S.C. § 1229b(a). With regard to remand, the BIA denied Obioha's request for two reasons. First, the BIA agreed with the DHS that Obioha's motion had failed to address prima facie eligibility, reasoning that "[i]n her motion, the respondent has not addressed the moral character issue arising from her admitted fraud, nor has she suggested that hardship might occur to a qualifying relative." J.A. 2. Second, the BIA found that "respondent had adequate opportunity to seek such alternative relief below, and she has not provided us with a persuasive reason why she should be permitted now to pursue another application." Id.Obioha timely petitioned this Court to review the denial of the motion to remand.

II.

The threshold issue of this appeal is whether this Court has jurisdiction to review the BIA's denial of Obioha's motion to remand. The Government argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, has stripped this Court's ability to review any discretionary decision related to cancellation of removal.3 IIRIRA's "gatekeeper provision," codified at 8 U.S.C. § 1252(a)(2)(B)(i), provides that "no court shall have jurisdiction to review . . . any judgment OBIOHA v. GONZALES regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 of this title . ..." 8 U.S.C. § 1252(a)(2)(B)(i).4

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Obioha requested remand for the purpose of pursuing cancellation of removal under 8 U.S.C. § 1229b(b). The Government argues that because the effect of denying her motion to remand is to deny her cancellation of removal, the gatekeeper provision bars review. The Fourth Circuit has not yet addressed the full extent of section 1252(a)(2)(B)(i)'s limits on jurisdiction.

It is quite clear that the gatekeeper provision bars our jurisdiction to review a decision of the BIA to actually deny a petition for cancellation of removal or the other enumerated forms of discretionary relief. See, e.g., Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002); Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003). However, neither the BIA nor the IJ ever decided Obioha's request for cancellation of removal as a nonpermanent resident on the merits — her request never got that far. Instead, the BIA cut off her ability to apply for such relief by denying her request to remand. As Obioha correctly points out, the BIA's authority over motions to remand arises from 8 C.F.R. § 1003.2, 5 which is not enumerated under the gatekeeper provision.6

The Government urges us to read 8 U.S.C. § 1252(a)(2)(B)(i) broadly and find that because the ultimate effect of denying Obioha's motion to remand is to preclude her from seeking cancellation of removal under section 1229b(b), this decision constitutes a "judgment regarding the granting of relief under section . . . 1229b . ..." 8 U.S.C. § 1252(a)(2)(B)(i). Although this interpretation is a plausible reading of the language, several principles of statutory construction counsel us to interpret this jurisdiction-stripping language narrowly. First, there must be a showing of '"clear and convincing evidence' of a contrary legislative intent" to restrict access to judicial review. Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). In addition, there is a "strong presumption in favor of judicial review of administrative action." INS v. St. Cyr, 533 U.S. 289, 298 (2001). Finally, courts construe ambiguities in deportation statutes in favor of the alien. INSv. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). See also Iddir v. INS, 301 F.3d 492, 496-97 (7th Cir. 2002) (applying these principles to the gatekeeper provision). Because the gatekeeper language is equally susceptible to a more narrow interpretation, barring review only of merits-based decisions under the enumerated provisions, these principles guide that the narrower reading is appropriate.

In addition, this circuit gave a narrow reading to the gatekeeper provision of IIRIRA's transitional rules. See Stewart v. INS, 181 F.3d 587 (4th Cir. 1999). In Stewart, the court reasoned that the language, "there shall be no appeal of any discretionary decision under section . . .

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245 [adjustment of status]," did not bar review of a motion to reopen, even though the purpose of the motion to reopen was to apply for an adjustment of status. Id. at 594 (quoting IIRIRA § 309(c)(4)(E)). The court recognized that a broad interpretation of the transitional rule could logically bar review of a decision on reopening. However, the court stated, "we believe the better interpretation of § 309(c)(4)(E) is that it divests courts of jurisdiction only over BIA decisions that address the merits of an alien's request for relief pursuant to those sections." Id. at 595. The court...

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