Onwuamaegbu v. Gonzales

• Decision Date: 06 December 2006
• Docket Number: No. 05-1181.,05-1181.
• Citation: 470 F.3d 405
• Parties: Benson Eziamaka ONWUAMAEGBU, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

470 F.3d 405

Benson Eziamaka ONWUAMAEGBU, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-1181.

United States Court of Appeals, First Circuit.

Submitted April 3, 2006.

Decided December 6, 2006.

Joseph L. Grimaldi and Law Offices of Joseph L. Grimaldi, P.C., on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Stephen J. Flynn, Senior Litigation Counsel, and Anh-Thu P. Mai, Attorney, on brief for respondent.

Before LIPEZ, Circuit Judge, CYR and STAHL, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Benson Eziamaka Onwuamaegbu appeals from the Board of Immigration Appeals' (BIA) denial of his motion to reconsider its summary affirmance of an immigration judge's decision, which refused to waive inadmissibility pursuant either to § 212(h) or (i) of the Immigration and Nationality Act (INA). See INA § 212(h), (i), 8 U.S.C. § 1182(h), (i). We vacate the denial, and remand to the BIA for written clarification of its grounds for summary affirmance.

I BACKGROUND

Onwuamaegbu, a native and citizen of Nigeria, came to the United States in the early 1980s on a temporary student visa. During 1986, he (i) married a lawful permanent resident (LPR); (ii) was convicted of larceny by check in Massachusetts and received a suspended six-month sentence; and (iii) applied for adjustment to LPR status based on his recent marriage to an LPR. In his application, however, Onwuamaegbu falsely responded "no" to the question: "Have you ever, in or outside the United States, been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic violations?" In 1988, Onwuamaegbu was convicted on two occasions for forgery in New Hampshire, and again received suspended sentences. Nevertheless, Onwuamaegbu was granted unconditional LPR status in 1989.

At some point prior to March 14, 2000, Onwuamaegbu took a trip of unknown duration to Nigeria. Upon returning to the United States, he was charged with inadmissibility by the Immigration and Naturalization Service (INS), based on his three prior convictions for crimes of moral turpitude (viz., larceny by check and forgery), INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and for his willful misrepresentation regarding his Massachusetts conviction in his 1986 application for adjustment of status, INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). Onwuamaegbu conceded removability, but contended that his deportation would result in "extreme hardship" to his family, and requested waivers of inadmissibility pursuant to INA § 212(h) and (i).

Following a hearing, the immigration judge (IJ) found Onwuamaegbu removable under INA § 212(a)(2)(A)(i)(I) or § 212(a)(6)(C)(i). Although the IJ determined that Onwuamaegbu's family would suffer extreme hardship if he were to be deported, she denied his request for a § 212(h) and (i) waiver due to the fact that he had previously been admitted as an LPR, but had not accrued the requisite seven years of continuous lawful residence in the United States. Onwuamaegbu appealed the IJ's decision to the BIA, contending that the IJ had erred in denying him a § 212(h) or (i) waiver, given that: (i) Onwuamaegbu had achieved LPR status in 1989; (ii) the fact that he achieved that status by fraudulent means was not relevant to his entitlement to a § 212(h) waiver; (iii) he therefore had lived lawfully and continuously in the United States from 1989 to 2000 (viz., more than the requisite seven years); and (iv) his brief trip to Nigeria could not—as a matter of law— have retolled the seven-year continuous residence requirement. In September 2004, the BIA summarily affirmed the IJ's decision. Onwuamaegbu did not petition for review of that denial, electing instead to file a timely motion to reconsider the BIA's denial of his appeal. The BIA denied the motion for reconsideration, and Onwuamaegbu filed a timely petition for review.

II DISCUSSION

A. Standard of Review

As Onwuamaegbu filed no petition for review from the BIA's September 2004 denial of his appeal from the IJ's decision, and that denial became final after 30 days,¹ we lack jurisdiction to review it. See 8 U.S.C. § 1252(b)(1); Zhang v. INS, 348 F.3d 289, 292 (1st Cir.2003) (noting that "[the] need to timely appeal is a strict jurisdictional requirement"). Rather, Onwuamaegbu submitted a timely petition for review from only the BIA's January 2005 denial of his motion for reconsideration of the September 2004 BIA decision. See 8 C.F.R. § 1003.2(b). Although we have jurisdiction to review this BIA decision, see Nascimento v. INS, 274 F.3d 26, 28 (1st Cir.2001), our standard of review is more circumscribed than it otherwise would have been had Onwuamaegbu petitioned for review from the BIA's denial of his appeal. We review the denial of a motion to reconsider only for abuse of discretion. See Zhang, 348 F.3d at 293; see also Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir.2004) (noting that abuse-of-discretion review of the BIA's denial of a motion for reconsideration is "considerably more deferential than the ordinary administrative-law standard that governs our review of agency decisions"), cert. denied, 544 U.S. 962, 125 S.Ct. 1741, 161 L.Ed.2d 604 (2005). In order to surmount this higher standard of review, Onwuamaegbu must demonstrate that the BIA's denial was "made without a `rational explanation, inexplicably departed from established policies, or rested on an impermissible basis' (such as race)." Zhang, 348 F.3d at 293 (citation omitted).

Although we normally review BIA decisions, and not IJ decisions, we directly review the IJ's decision in this case because the BIA summarily affirmed it. See Stroni v. Gonzales, 454 F.3d 82, 86-87 (1st Cir.2006).

B. Removability Pursuant to INA § 212(a)(2)(A)(i)(I) & 212(a)(6)(C)(i)

First, Onwuamaegbu asserts that the IJ erred in ruling that he was removable due to his previous conviction for a crime of moral turpitude (viz., the May 1986 Massachusetts conviction for larceny by check), INA § 212(a)(2)(A)(i)(I),² and that he had conceded that he was removable for failing to disclose that conviction in his September 1986 application for lawful permanent resident status, see INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).³ Onwuamaegbu points out that, at the time of that conviction, the INA excepted convictions for a "petty offense," see INA § 212(a)(9), 8 U.S.C. § 1182(a)(9) (repealed), and argues that his state conviction meets this criterion given that larceny by check is classified and/or punishable as a "misdemeanor" under Massachusetts law, see Mass. Gen. Laws Ann. ch. 274, § 1. He further contends that his failure to disclose this "misdemeanor" conviction on his 1986 LPR application was therefore, by definition, not "material," hence not an additional ground for removability under § 212(a)(6)(C)(i).

We need not address these questions, however, as Onwuamaegbu failed to raise them before the BIA, either by appeal from the IJ's decision, or in his motion for reconsideration. Instead, he simply challenged the IJ's decision to deny him a waiver of inadmissibility under INA § 212(h) and (i), see infra. Arguments not raised on appeal to the BIA are deemed waived, for failure to exhaust administrative remedies. See Susanto v. Gonzales, 439 F.3d 57, 61 (1st Cir.2006).

C. The Section 212(h) Waiver of Inadmissibility

Next, Onwuamaegbu challenges the IJ's determination that he was ineligible for a discretionary waiver of inadmissibility under INA § 212(h), which provides in pertinent part:

The Attorney General may, in his discretion, waive [inadmissibility] .. .

[1](B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien

....

[2] No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B) (emphasis added). Hence, subsection 1 invests the Attorney General with the discretion to grant a waiver to an immigrant who demonstrates that his deportation will result in familial hardship, whereas subsection 2 defines several subcategories of immigrants who are per se ineligible for this waiver even if they can establish "extreme hardship".

The IJ found that Onwuamaegbu satisfied the "extreme hardship" criterion of § 212(h)(1)(B), but went on to deny the waiver because Onwuamaegbu (i) was an immigrant "previously ... admitted" for lawful permanent residence, and (ii) had "not lawfully resided continuously in the United States for a period of not less than seven years." The IJ noted that the BIA had interpreted the unambiguous phrase "previously . . . admitted" to refer to any immigrant who had in fact obtained LPR status, regardless of whether he had done so by lawful or unlawful means. See In re Ayala-Arevalo, 1998 WL 833810, 22 I. & N. Dec. 398, 401 (BIA 1998). Thus, the IJ noted that Onwuamaegbu's admission as an LPR in 1987, even if he obtained that status by making a material misrepresentation in his application, satisfied the "previously . . . admitted" criterion of § 212(h), and Onwuamaegbu was therefore "bound" by the requirement that he must have lawfully resided continuously in the United States for at least seven years. The IJ noted that Onwuamaegbu was a "returning alien" in March 2000, and therefore did...