Ikenokwalu-White v. I.N.S.

• Decision Date: 21 January 2003
• Docket Number: No. 02-1264.,02-1264.
• Citation: 316 F.3d 798
• Parties: Edy Uzor IKENOKWALU-WHITE, Petitioner—Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; John D. Aschroft, in his official capacity as Attorney General of the United States, Respondents—Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.3d 798

Edy Uzor IKENOKWALU-WHITE, Petitioner—Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; John D. Aschroft, in his official capacity as Attorney General of the United States, Respondents—Appellees.

No. 02-1264.

United States Court of Appeals, Eighth Circuit.

Submitted: November 8, 2002.

Filed: January 21, 2003.

COPYRIGHT MATERIAL OMITTED

Before McMILLIAN and MELLOY, Circuit Judges, and FRANK,¹ District Judge.

MELLOY, Circuit Judge.

In this immigration case the petitioner, Edy Uzor Ikenokwalu-White ("Ikenokwalu"), seeks review of a final order issued by the Board of Immigration Appeals ("the Board") which found that she did not qualify for suspension of deportation or voluntary departure. The Board held that Ikenokwalu had failed to establish her good moral character, a statutory prerequisite to the Attorney General's discretionary authority to suspend deportation or permit voluntary departure in lieu of deportation. After concluding that we have jurisdiction to review the Board's order, we reject Ikenokwalu's contention that the Board relied on impermissible factors in making its moral character determination and affirm its decision.

I.

Ikenokwalu is a 44 year old native and citizen of Nigeria who entered the United States on August 21, 1977. She has a long history with the Immigration and Naturalization Service ("INS"), including two rescissions of permanent resident status. The instant proceedings commenced in 1995 when the INS issued an Order to Show Cause charging that Ikenokwalu was subject to deportation for, inter alia, overstaying her student visa. After hearings on the matter, an Immigration Judge found Ikenokwalu deportable and denied her applications for suspension of deportation under 8 U.S.C. § 1254(a)(3) and voluntary departure under 8 U.S.C. § 1254(e).² The Immigration Judge found that Ikenokwalu failed to establish that she was of good moral character and that her deportation would cause extreme hardship to herself or her family, both of which were statutory prerequisites to the Attorney General's discretionary suspension authority. See 8 U.S.C. § 1254(a)(3). The finding that Ikenokwalu lacked good moral character also meant she was statutorily ineligible for voluntary departure in lieu of deportation. See 8 U.S.C. § 1254(e).

Ikenokwalu appealed, and on December 14, 2001, the Board affirmed the Immigration Judge's order. The Board held that Ikenokwalu was "statutorily ineligible for suspension of deportation as she has failed to establish good moral character." Having so concluded, the Board found it unnecessary to address whether Ikenokwalu could show extreme hardship or whether she merited relief as a matter of discretion. The Board did not separately analyze the voluntary departure issue, but noted that the same evidence of lack of good moral character meant Ikenokwalu was also statutorily ineligible for voluntary departure. This appeal followed.

II.

In this appeal, Ikenokwalu argues that the Board, and the Immigration Judge, relied on improper factors to conclude that she lacked the good moral character requisite to discretionary relief under 8 U.S.C. § 1254(a)(3) or 1254(e). Specifically, Ikenokwalu contends that the Board impermissibly relied on expunged convictions and conduct which occurred outside the three-year period for which good moral character was required. In response, the government argues that this court lacks jurisdiction to review the Board's moral character determination. If jurisdiction does exist, the government contends that the Board's consideration of Ikenokwalu's expunged convictions and prior conduct was proper, and that substantial evidence supports the Board's decision that Ikenokwalu failed to establish her good moral character.

A.

We first address, and reject, the government's contention that we lack jurisdiction over this matter. See Vasquez-Velezmoro v. INS, 281 F.3d 693, 695 (8th Cir.2002) ("[T]his Court has jurisdiction to determine preliminary jurisdictional issues."). Because Ikenokwalu was placed in deportation proceedings before April 1, 1997, and the final order of deportation was issued after October 31, 1996, this case is governed by the IIRIRA transitional rules. See IIRIRA § 309(c)(4) (explaining applicability of "transitional changes in judicial review"). Thus, this court has jurisdiction under 8 U.S.C. § 1105a(a) unless the IIRIRA transitional rules preclude review. See IIRIRA § 309(c)(4)(E).

IIRIRA § 309(c)(4)(E) provides that appellate courts have jurisdiction to review nondiscretionary aspects of the Attorney General's suspension of deportation and voluntary departure determinations, but lack jurisdiction to review discretionary aspects of those decisions.³ Accordingly, "[t]he exact basis for the denial ... and the nature of the challenge to that denial are important to the issue of whether § 309(c)(4)(E) precludes jurisdiction." Bernal-Vallejo v. INS, 195 F.3d 56, 61 (1st Cir.1999).

Ikenokwalu applied for suspension of deportation under Section 244(a) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1254(a)(3).⁴ This provision, added by the Violence Against Women Act of 1994, Title IV of Pub.L. No. 103-322, § 40703(a), 108 Stat. 1796, 1902-55, states that the Attorney General "may, in his discretion, suspend deportation" in cases where the alien:

(1) "has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application;"⁵

(2) "has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen ...;"

(3) "proves that during all of such time in the United States the alien was and is a person of good moral character;" and

(4) "is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or the alien's parent or child."

The moral character element at issue here is informed by INA § 101(f), 8 U.S.C. § 1101(f). That section lists seven categories, any one of which, if applicable, mandates a finding that the applicant for suspension of deportation lacks good moral character. See id.⁶ For example, an applicant will be ineligible for suspension of deportation if it is established that he or she is a habitual drunkard or an illegal gambler. See id. None of these per se categories is at issue here. Section 1101(f) also includes a "catchall" category which states that "[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." Id. It is under this catchall provision that the Immigration Judge and Board based their finding against Ikenokwalu.

The government argues that where, as here, the good moral character determination is based on Section 1101(f)'s catch-all provision, it is a discretionary determination that is not reviewable by this court under IIRIRA § 309(c)(4)(E). This is an issue of first impression in this circuit.

Two circuits have discussed the "good moral character" element and concluded that although findings based on Section 1101(f)'s enumerated categories are reviewable, those made under the catchall provision are not. See Bernal-Vallejo v. INS, 195 F.3d 56 (1st Cir.1999); Kalaw v. INS, 133 F.3d 1147 (9th Cir.1997). These courts make a distinction between the per se categories which require mere "application of law to factual determinations"-e.g., the alien does or does not have two prior convictions for gambling-and the catchall provision, which they view as inherently discretionary and thus unreviewable. See Bernal-Vallejo, 195 F.3d at 62-63 ("[I]f a [Board] decision [on moral character] turned on a dispute about whether the applicant fit one of the per se categories, § 309(c)(4)(E) would not bar this court's review. If, however, the determination of lack of good moral character was not based on the per se categories, then judicial review would be barred, for that determination would be a discretionary one."); Kalaw, 133 F.3d at 1151 ("Apart from the per se categories, however, whether an alien has good moral character is an inquiry appropriate for the Attorney General's discretion.").

As noted by Ikenokwalu, however, the moral character element was not essential to the above-noted decisions since, in each of those cases, that element was not in dispute. In each instance the Board found in favor of the alien on the good moral character element but against the alien on the "extreme hardship" element, which was subsequently held to be unreviewable. See Bernal-Vallejo, 195 F.3d at 63 ("Here, the denial of Bernal's application was based on a determination that he would not suffer extreme hardship if deported,..."); Kalaw, 133 F.3d at 1152-53 (reviewing the Board's decision that applicants had failed to satisfy the extreme hardship test). Accordingly, the effect of an adverse ruling on moral character was not squarely before the reviewing courts. Therefore, Ikenokwalu argues, the courts' jurisdictional discussions regarding the good moral character element were dicta not subject to the briefing and litigation process and should be found unpersuasive.

In this appeal, the question of jurisdiction is squarely before us because the Board's decision turned solely on the moral character element. After careful review of the relevant statutory language, the purposes underlying the statute, and the treatment of the issue by courts prior to enactment of the IIRIRA, we are persuaded that we have jurisdiction under 8 U.S.C. § 1105a(a) to review the Board's finding on moral character under any aspect of 8 U.S.C. § 1101(f). In other words, the determination that an alien has failed to establish good moral character under the catchall provision of Section 1101(f) is, like the per se categories, a question of applying the law to the facts and results in a nondiscretionary, reviewable...