Emokah v. Mukasey

• Decision Date: 22 April 2008
• Docket Number: Docket No. 07-3115-ag.
• Citation: Emokah v. Mukasey, 523 F.3d 110 (2nd Cir. 2008)
• Parties: Stella Chukwudumebi EMOKAH, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

523 F.3d 110

Stella Chukwudumebi EMOKAH, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States,¹ Respondent.

Docket No. 07-3115-ag.

United States Court of Appeals, Second Circuit.

Argued: April 7, 2008.

Decided: April 22, 2008.

Roberto Tschudin Lucheme, Glastonbury, CT, for Petitioner.

Russell J.E. Verby, (Jeffrey S. Buckholtz, Acting Assistant Attorney General on the brief, Barry J. Pettinato, Assistant Director, of counsel), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: WALKER, CABRANES AND RAGGI, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Stella Chukwudumebi Emokah, a native and citizen of Nigeria, seeks review of a June 16, 2005 decision of Immigration Judge ("IJ") Michael W. Straus denying her applications for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i)² and an adjustment of status under 8 U.S.C. § 1255(a).³ See In re Emokah, No. A 78-470-777 (Imm. Ct. Hartford June 16, 2005). The Board of Immigration Appeals ("BIA") affirmed the IJ's decision in an opinion issued on June 22, 2007. See In re Emokah, No. A 78-470-777 (BIA June 22, 2007). On appeal, petitioner contends that she did not need a waiver of inadmissibility to adjust her status because her knowing use of a fraudulent surname to obtain a visa did not amount to a willful misrepresentation of a material fact within the meaning of 8 U.S.C. § 1182(a)(6)(C)(i), see note 2 ante (text of provision). In the alternative, petitioner contends: first, that her possession of an approved I-360 visa petition⁴ obviated the need for a section 1182(i) waiver; and, second, that if the section 1182(i) waiver was required, her circumstances were such that the waiver should have been granted. We find these arguments to be without merit but write to clarify that, where an alien whose previous visa application has been denied receives a visa after providing false information about her identity, that conduct constitutes willful misrepresentation of a material fact for purposes of 8 U.S.C. § 1182(a)(6)(C)(i).

I. BACKGROUND

Petitioner entered the United States in August 2000, on a B-2 non-immigrant visa⁵ that was valid until February 2001. She married Peter Emokah, a U.S. citizen, in October 2000. Emokah filed an I-130 visa petition⁶ on petitioner's behalf in December 2000 but withdrew the petition in May 2001 based on suspicions that petitioner was already married to someone else in Nigeria. In June 2001, the then-Immigration and Naturalization Service initiated removal proceedings against petitioner on the basis that she had remained in the United States past the expiration of her nonimmigrant visa. Four months later, petitioner and Peter Emokah separated and later divorced. In October 2001, petitioner filed an I-360 petition, see ante note 4, on her own behalf. Petitioner then appeared before the IJ for a removal hearing in October 2002 wherein she conceded her removability but sought a continuance of the removal proceedings to allow for the adjudication of her I-360 petition. The IJ granted petitioner's request for a continuance on this occasion, in June 2003, and again in January 2004.

At a hearing held on June 15, 2004, petitioner's counsel informed the IJ that the I-360 petition had been approved. The IJ asked whether petitioner's counsel anticipated any issues with petitioner's application for adjustment of status and petitioner's counsel answered "[p]ossibly one," relating to "[m]isrepresentation at the embassy" where petitioner obtained her B-2 visa. J.A. 59. The IJ then adjourned proceedings so that petitioner's counsel could file an application for a waiver of inadmissibility pursuant to section 1182(i) see note 2 ante. At petitioner's fifth appearance before the IJ, on May 6, 2005, the IJ noted that petitioner's counsel had not yet filed the application for a section 1182(i) waiver on her behalf and reminded petitioner's counsel that petitioner bore the burden of proof on the issue of her admissibility. Petitioner's counsel agreed to submit the application for a section 1182(i) waiver within ten days.

On June 16, 2005, the IJ held a merits hearing on petitioner's applications for a waiver of admissibility and adjustment of status. At the hearing, petitioner testified that, prior to taking the name of her U.S. citizen husband, her surname was Limogou. She also acknowledged that she had provided a different surname — "Oke" — when applying for her B-2 visa in Lagos, Nigeria. On direct examination, she explained that "Oke" was the surname of a wealthy and well-connected Nigerian businessman with whom she had been romantically involved for several years. She further explained that she had a child with Oke but was not married to him because he was already married to someone else. Petitioner testified that, to obtain a visa for travel to the United States, she had gone with Oke and their son to the American embassy in Lagos. The consular official in charge of visa interviews called them up as "Ok[e]'s family" and they were interviewed together. J.A. 85. Oke stated that the visa was for him and that he was traveling with his family. According to petitioner, "because of the . . . bank statements[] [and] all the things that he provided, . . . [the embassy officials] did not ask any further questions. They just said, come tomorrow, pick up your passports by 12 noon." Id. These events occurred in 1994, shortly before petitioner's first trip to the United States. Thereafter, whenever petitioner's visa expired, Oke would fill out a new visa application on her behalf and take it, along with petitioner's passport, to the American embassy in Lagos. It was in this way that petitioner obtained the visa on which she traveled to the United States in August 2000.

Petitioner further testified that Oke had paid for her to visit the United States in 1994, 1997, and 1998. Her August 2000 visit, however, was undertaken without Oke's knowledge and motivated by her desire to leave him. Shortly after arriving in the United States, she met and married Peter Emokah. Nevertheless, she continued to call Oke periodically to discuss matters relating to their son, who was living in Nigeria with petitioner's sister. Petitioner testified that these communications, and the surname "Oke" on her passport, caused Emokah to suspect that a "marriage [had been] contracted" between petitioner and Oke. Id. at 105. In response to these suspicions, Emokah withdrew the I-130 visa petition he had filed on petitioner's behalf; they separated several months later and subsequently divorced.

Petitioner also testified about the hardships she would face if she were returned to Nigeria. Specifically, she stated that she did not have any prospects for employment and feared retaliation from Oke. She also testified that her "[l]ife would not be safe, generally" based on country conditions. Id. at 94. Petitioner submitted a number of documents to corroborate her testimony. Among these were a letter from her father to Emokah, reassuring Emokah that petitioner was not married to Oke but had used his surname in order to obtain a visa for travel to the United States after a prior visa application in her own surname had been rejected;⁷ and a letter from Emokah to the Immigration and Naturalization Service stating that petitioner had told him that "she used . . . Mr Oke's name to get [her] visa because of financial verification purposes." Id. at 181.

At the close of the hearing, the IJ issued an oral decision finding that (1) petitioner had "committed visa fraud on several occasions by using the name Oke when she, in fact, did not have that name"; and (2) "there is some discrepancy as to why she used the name Oke."⁸ See In re Emokah, No. A 78-470-777, at 6 (Imm. Ct. Hartford June 16, 2005). Evaluating whether petitioner had satisfied the "extreme hardship" requirement for a waiver of inadmissibility pursuant to section 1182(i), the IJ determined that "[c]onsidering all the factors," petitioner had not presented "sufficient evidence to establish extreme hardship." Id. Rather, petitioner's claim of hardship is "generally the hardship that happens based on anyone who departs the United States." Id. The IJ also concluded that, "based on the underlying fraud and the clear discrepancies in the [evidence presented by petitioner], . . . the favorable exercise of discretion is not warranted." Id. at 7. Accordingly, the IJ denied petitioner's applications for a waiver of inadmissibility and adjustment of status and ordered petitioner returned to Nigeria.

Petitioner then appealed to the BIA. On appeal she claimed that (1) she did not need to obtain a section 1182(i) waiver of inadmissibility prior to adjusting her status because her use of Oke's name on her visa application did not constitute misrepresentation or fraud; (2) her possession of an approved I-360 visa petition rendered her admissible under 8 U.S.C. § 1182(a)(6)(A)(ii)(II),⁹ obviating the need for a section 1182(i) waiver; and (3) if the section 1182(i) waiver was required, her circumstances were such that the section 1182(i) waiver should have been granted.

In an opinion issued on June 22, 2007, the BIA explained that:

In our review [of the record], we concur with the Immigration Judge's finding that [petitioner] committed fraud or a willful misrepresentation within the scope of [8 U.S.C. § 1182(a)(6)(C)(I)] which necessitated a section [1182(i)] waiver. [Petitioner] acknowledged that she used the surname of her child's father to facilitate her obtaining a visa and . . . signed the visa application knowing the use of the surname . . . [was] a willful misrepresentation.

[W]e also concur in the Immigration Judge's analysis denying [petitioner's] request for a section [1182(i)] waiver. Although [petitioner] apparently has a lawful permanent resident mother in the United States, the record does not contain evidence of hardship to [the ...