Champion v. Holder

• Decision Date: 22 November 2010
• Docket Number: No. 09-3065,09-3065
• Citation: 626 F.3d 952
• Parties: Olaronke Olufunmilayo CHAMPION, also known as Olaronke Adeyemi, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

626 F.3d 952

Olaronke Olufunmilayo CHAMPION, also known as Olaronke Adeyemi, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-3065.

United States Court of Appeals,Seventh Circuit.

Argued May 19, 2010.

Decided Nov. 22, 2010.

Taher Kameli, Attorney, John R. Floss (argued), Attorney, Kameli & Associates, P.C., Chicago, IL, for Petitioner.

Kathryn Deangelis (argued), Attorney, Department of Justice, Washington, DC, for Respondent.

Before O'CONNOR ¹, Associate Justice, and WILLIAMS and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge.

Olaronke Champion, a citizen of Nigeria, legally entered the United States in 1988. The government initiated removal proceedings against her in 2005. Champion applied for cancellation of removal based on the hardship that would result to her minor children if she would be deported. The immigration judge ("IJ") denied her application, in part because he concluded that other family members, including the children's father who was also under removal proceedings, were available to support the children in the event that Champion was deported. The Board of Immigration Appeals ("BIA") affirmed the denial of relief, and Champion petitioned this court for review. We affirm the BIA's findings with respect to Champion's due process claims because she had a full opportunity to present her case and the IJ did not consider improper information. However, because the BIA did not address Champion's claim that the possibility of the deportation of the children's father would constitute an extremely unusual hardship, we remand for further consideration.

I. BACKGROUND

Olaronke Champion is a native and citizen of Nigeria. She entered the United States in 1988 under a tourist visa. In 1991, she married a United States citizen and applied for status adjustment based on her marriage. Immigration and NaturalizationServices denied her application, finding that Champion had failed to provide sufficient evidence that an earlier Nigerian marriage had been officially terminated. In 2005, the government commenced removal proceedings against Champion. The government initially charged her with committing visa fraud under the Immigration and Nationality Act ("INA") § 212(a)(6)(C)(i) based on the government's belief that Champion had submitted a fraudulent Nigerian divorce decree in conjunction with her application for status adjustment. The government twice amended these charges, first alleging that she had attempted to enter the United States without a valid entry document in violation of INA § 212(a)(7)(A)(i)(I), and then asserting that she had overstayed her visa in violation of INA § 237(a)(1)(B). Ultimately, the government only pursued the charge concerning Champion's stay in the United States past the expiration of her visa.

Champion conceded removability but requested cancellation of removal under 8 U.S.C. § 1229b(b)(1).² At her hearing before the IJ, the government stipulated that Champion satisfied the cancellation requirements for moral character, lack of convictions, and physical presence for cancellation, leaving "exceptional or extremely unusual hardship" to her family as the sole issue before the court. As grounds for finding exceptional hardship, Champion testified that she was the primary caregiver for her two minor daughters, Tomi and Toni Adeyemi (aged 14 and 11 at the time), both of whom were born in the United States. Champion stated that she was concerned about taking her daughters to Nigeria not only because it would be very foreign to them, but also because she feared that they might be subjected to female circumcision. Champion also has a son, Tobi, who was 20 years old at the time and was attending college in New York. Tobi was also under removal proceedings. Champion and her two daughters share a home in Hinsdale, Illinois with Champion's Nigerian ex-husband, Yomi Adeyemi, who is also the father of the three children. Champion explained that she and Yomi came to the United States together, after which he became a physician and she a registered nurse. According to Champion, Yomi has played an active role in supporting the children emotionally and financially. As for the rest of Champion's relatives in the United States, she has three siblings who have obtained lawful resident status, including two sisters who reside in Illinois and a brother who lives in Atlanta.

At the end of the hearing, Champion's attorney requested closing argument, but the IJ declined, saying that he "would ask [counsel] to reserve on the closing argument" because there were "no significant issues of law or really even fact, that needed to be discussed." The IJ then asked whether there was "anything else before he issue[d] an oral decision," and Champion's attorney did not reply.

The IJ determined that Champion had not demonstrated that she qualified for cancellation of removal because she had not shown that her daughters would suffer the requisite exceptional or extremely unusual hardship if she were removed. The IJ specified that the children could stillrely on their father's support in the United States as well as that of other close relatives. Champion appealed, arguing that the IJ failed to consider a number of factors important to the hardship analysis, including Yomi's potential deportation. Champion also asserted that her due process rights were violated when the IJ refused to allow closing argument and when he referenced the marriage fraud allegation. The BIA adopted and affirmed the IJ's findings. Champion now petitions this court for review.

II. ANALYSIS

Where, as here, the BIA affirms the IJ's decision and supplements with its own explanation for denying the appeal, we review the IJ's decision as supplemented by the BIA's reasoning. Juarez v. Holder, 599 F.3d 560, 564 (7th Cir.2010). Before we turn to the merits, however, we must first consider whether we have jurisdiction to review the IJ's discretionary and factual determination that Champion was ineligible for cancellation of removal. Generally, we do not have jurisdiction to evaluate discretionary decisions made by the Attorney General, see 8 U.S.C. § 1252(a)(2)(B)(i). So we lack jurisdiction over the BIA's ultimate determination that Champion was ineligible for cancellation of removal. Nonetheless, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review.

We conclude that one of Champion's central arguments on appeal—that the BIA failed to consider the impact of Yomi's potential removal—is a question of law appropriate for our review. In large part, the BIA and the IJ based their finding that Champion's children would not suffer extreme hardship on an assumption that Yomi, the children's father, would be available to emotionally and financially support the children if Champion were deported to Nigeria. At several points in the IJ's oral ruling, he referenced Yomi's profession as a "physician in Chicago," saying that "Tomi and Toni can rely on their father's support". The IJ went on to recount Yomi's salary and the various ways in which he had financially supported Champion and their children over the years, including lending Champion $40,000 to use as the down payment for the family's home and his contributions to the monthly mortgage.³ The BIA also appeared to assume that Yomi would continue to be a source of support for the children in the event that Champion is deported. For instance, the BIA stated that "[i]t also appears that the two children would likely have the companionship and assistance of their father and two aunts, all of whom live either with or near them," and in a separate part of the opinion, again noted that Yomi "is a physician and he could conceivably provide continued financial support."

We find that Champion's allegation that the BIA ignored the evidence she presented concerning Yomi's potential deportation was a good faith claim of legal error that we may review. As we have previously held, "a claim that the BIA has completely ignored the evidence put forth by a petitioner is an allegation of legal error." Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). And the "failure to exercise discretion or to consider factors acknowledged to be material to such an exercise—such as the wholesale failure to consider evidence—would be an error of law...." Id. (citations and internal quotation marks omitted). Here, both the IJ and the BIA virtually ignored the possibilitythat Yomi could also be deported, an oversight that we have found may warrant remand. See, e.g., Kone v. Holder, 620 F.3d 760, 765 (7th Cir.2010) (remanding to BIA to determine, inter alia, whether petitioner had a claim for constructive deportation when both parents were under removal proceedings). Finding that the BIA erred by failing to consider the impact of Yomi's potential deportation, we remand this matter in order for the BIA to address this critical...