Ikharo v. Holder
| Citation | 614 F.3d 622 |
| Decision Date | 13 October 2010 |
| Docket Number | Nos. 08-4139, 09-3587.,s. 08-4139, 09-3587. |
| Parties | Musa Abdul IKHARO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
614 F.3d 622
Musa Abdul IKHARO, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.
Nos. 08-4139, 09-3587.
United States Court of Appeals,Sixth Circuit.
Aug. 2, 2010.
Rehearing and Rehearing En Banc Denied Oct. 13, 2010.
COPYRIGHT MATERIAL OMITTED.
ON BRIEF: Brian C. DiFranco, DiFranco Law Office, Columbus, Ohio, for
Petitioner. Jesse Lloyd Busen, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
Before: GILMAN and WHITE, Circuit Judges; THAPAR, District Judge. *
Musa Abdul Ikharo is a 50-year-old Nigerian native who entered the United States illegally in 1981, but later became a lawful permanent resident. In 2002, the government charged Ikharo with removability due to his having two convictions for crimes involving moral turpitude and because of his status as an aggravated felon. An immigration judge (IJ) found Ikharo removable as charged and denied his applications for waiver of inadmissibility, asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT).
Ikharo appealed the IJ's decision to the Board of Immigration Appeals (BIA) and, following a fee dispute with his counsel, he attempted to file a pro se brief. The BIA rejected Ikharo's brief as improperly filed, however, and summarily affirmed the IJ's decision. It further denied Ikharo's motion to reconsider. For the following reasons, we DENY review of both the BIA's order affirming the decision of the IJ and the BIA's order denying Ikharo's motion to reconsider.
Ikharo entered the United States without inspection through the Canadian-Michigan border in 1981. While living in Nigeria, Ikharo was a medical assistant in the Nigerian Navy, but he deserted in order to immigrate to the United States. Ikharo became a lawful permanent resident in November 1993 via an unspecified immigration procedure and joined the United States Naval Reserve one month later. At all times subsequent to his obtaining permanent residency, Ikharo lived in Columbus, Ohio. Ikharo was married from 1990 to 1991 and he has three children, two of whom are United States citizens.
In December 1994, Ikharo pled guilty in the Franklin County Court of Common Pleas to (1) disseminating matter harmful to a juvenile, in violation of Ohio Revised Code § 2907.31(A), and (2) gross sexual imposition, in violation of Ohio Revised Code § 2907.05. Ikharo was sentenced to two years of imprisonment after entering a plea of guilty. He also received an Other Than Honorable Discharge from the United States Navy due to his gross-sexual-imposition conviction
Eight years later, in May 2001, Ikharo was indicted in the Franklin County Court of Common Pleas on one count of burglary, in violation of Ohio Revised Code § 2911.12. Following a jury trial, Ikharo was convicted on this charge and received a 90-day prison sentence. His conviction was vacated on procedural grounds, however, by the Ohio Tenth District Court of Appeals, which held that Ikharo's trial counsel was ineffective. Ikharo subsequently pled guilty to the lesser-included offense of criminal mischief in August 2003. He received a 60-day prison sentence on this reduced charge.
In October 2002, prior to the vacatur of Ikharo's burglary conviction, the former Immigration and Naturalization Service (now the Department of Homeland Security) served Ikharo with a notice to appear.
The agency charged Ikharo with removability because he was an alien who, after being admitted to the United States, (1) had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, and (2) had been convicted of an aggravated felony, specifically the sexual abuse of a minor.
Ikharo challenged the charge of removability on multiple grounds. First, he sought waivers of inadmissibility under Sections 212(c) and (h) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1182(c) and (h). (Although Congress repealed INA § 212(c) in 1996, relief under that statute remains available for aliens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).) Section 212(c) allows for a discretionary waiver of inadmissibility for “[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years.” INA § 212(c) (repealed 1996).
The BIA has held that this provision is applicable to aliens who are lawful permanent residents regardless of whether they departed the United States following the act or acts that render them deportable. In re Silva, 16 I. & N. Dec. 26, 30 (B.I.A.1976). But this relief is available only if the alien's otherwise deportable offense is comparable to one of the grounds of inadmissibility set forth in INA § 212(a). 8 C.F.R. § 1212.3(f)(5) (providing that an alien is ineligible for a § 212(c) waiver when charged with removability as an aggravated felon “on a ground which does not have a statutory counterpart in section 212 of the Act”).
Ikharo claimed that he was eligible for relief under § 212(c) because he had lived in the United States legally for more than seven years prior to his being charged with removability. He also contended that his conviction for gross sexual imposition was not a conviction for sexually abusing a minor and therefore did not qualify as an aggravated felony under § 212(a).
Ikharo likewise sought a waiver of inadmissibility under § 212(h)(1)(B). Under this provision, an alien designated as an aggravated felon is eligible for a discretionary waiver of inadmissibility if he or she can establish that deportation “would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” INA § 212(h)(1)(B). In his application for relief, Ikharo claimed that his removal would cause extreme hardship to his then 10-year-old son, a United States citizen. Ikharo testified that he had been paying child support for his son since 1998, but said that his son would not accompany Ikharo to Nigeria due to their family's Christian beliefs, the poor quality of Nigerian schools and health services, and the fact that Ikharo would not have a home for his son.
In addition to his applications for a waiver of inadmissibility, Ikharo sought asylum, the withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the CAT pursuant to 8 C.F.R. §§ 1208.16 and 1208.17. Ikharo stated that, as a Christian, he feared being persecuted by Muslims should he to return to Nigeria, noting that his parents' house was invaded by Muslim fundamentalists in 1997. He added that upon returning to Nigeria for a visit shortly after the 1997 incident, he discovered that his parents' house had been searched and that their car and valuables had been taken. According to Ikharo, there were “blood written
signs of death on the door” of the house.
Ikharo also sought protection from the repercussions of his decision to desert the Nigerian Navy. He claimed that the Navy would likely court martial him and sentence him to life imprisonment or death by firing squad for leaving the service without being formally discharged.
B. The removal hearing
In May 2007, Ikharo appeared and testified at his removal hearing before the IJ. He reiterated his belief that he would be imprisoned or executed for deserting the Nigerian Navy, adding that he had visited Nigerian military prisons prior to coming to the United States and observed unsanitary conditions and inhumane treatment of prisoners at those facilities. Ikharo insisted that the Nigerian military “indiscriminately” executed deserters, despite acknowledging that Nigerian law did not include the death penalty for such an offense. To support his argument, Ikharo presented a document purportedly issued by the Nigerian Naval Headquarters stating that the death penalty was imposed on deserters. Ikharo said an unnamed friend in Nigeria obtained the document for him.
In addition to testifying about his desertion from the Nigerian Navy, Ikharo elaborated on the persecution that he would allegedly suffer due to his Christian beliefs if he were removed to Nigeria. Ikharo said that his parents had been members of their church for 30 years and that his father was an active and well-known member of the congregation. He submitted various pictures of his father preaching at the church. According to Ikharo, members of the community easily identified him as his father's son and as a similarly strong supporter of the congregation.
Ikharo stated that, after their house was invaded by Muslim fundamentalists in 1997, his parents sought treatment in a hospital several hours away from their residence in an effort to escape their attackers. He added that he sent money to his parents and visited them after the incident, but that his mother died soon thereafter. According to Ikharo, his father relocated to the southern region of the country and, although few Muslims live nearby, his father still fears being tracked down and attacked by Muslim fundamentalists. Ikharo testified that although the then-president of Nigeria was Christian, he was unable to prevent Muslim attacks in the country. He conceded, however, that the Muslim fundamentalists were not connected to the Nigerian government.
Dr. Don Ibezim, a United States citizen who was born in Nigeria, testified on behalf of Ikharo. A program manager and research specialist at The Ohio State University, Ibezim said that he knew Ikharo when the latter was an engineering student...
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