Ogbemudia v. I.N.S.
| Decision Date | 19 April 1993 |
| Docket Number | No. 92-4514,92-4514 |
| Citation | 988 F.2d 595 |
| Parties | Solomon OGBEMUDIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Theodore P. Jakoboski, Houston, TX, for petitioner.
William Barr, Atty. Gen., Dept. of Justice, Anthony W. Norwood, Alice M. King, Mark C. Walters, Robert Kendall, Jr., Robert L. Bombough, Dir., Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.
E.M. Trominski, I.N.S. Dist. Dir., Harlingen, TX, John B.Z. Caplinger, Dist. Dir., I.N.S., New Orleans, LA, for other interested parties.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
Petitioner Solomon Ogbemudia appeals the final order of the Board of Immigration Appeals (BIA), which found him deportable and denied his motion to reopen his application for asylum and withholding of deportation. In the BIA's final order, it affirmed the decision of the Immigration Judge (IJ), finding 1) that Ogbemudia was deportable under § 241(a)(1)(B) of the Immigration and Nationality Act (INA) 1 and 2) that Ogbemudia had made no application for relief from deportation. Ogbemudia challenges the decision of the BIA, claiming that its refusal to reopen his case was an abuse of discretion. He also contests the procedures followed by the IJ, claiming a violation of due process. After considering these issues under their respective standards of review, we find no reversible error and affirm.
Ogbemudia, a native of Nigeria, first entered this country as a student in 1981. He obtained an associate's degree from Houston Community College in 1987, and thereafter attended Prairie State A & M University for two semesters. During the period 1986 through 1988, Ogbemudia was convicted of two separate counts of theft, one count of attempted theft, and one count of assault. As a result, he was deported to Nigeria in September 1988 for having committed crimes involving moral turpitude.
Never applying for readmission, Ogbemudia reentered the United States illegally in 1990. In April 1991, Ogbemudia was once again convicted in Harris County, this time for possession of a counterfeit driver's license. He was sentenced to five years in prison. In 1992, apparently while he was in detention, Ogbemudia's common-law marriage was registered in Harris County.
The Immigration and Naturalization Service (INS) issued an order to show cause, charging Ogbemudia as deportable under four separate sections of the INA: § 241(a)(1)(B) 2 (entry into the United States without inspection); § 241(a)(1)(A) 3 (conviction of crime involving moral turpitude); § 241(a)(1)(A) 4 (reentry after deportation without reapplication for admission); and § 241(a)(2)(A)(i) 5 (conviction of crime involving moral turpitude within five years of date of entry and imprisonment or sentenced to imprisonment for one year or more). Ogbemudia did not contest this information, and even now does not contest his deportability under those sections of the INA.
Ogbemudia first appeared before the IJ in connection with the instant charges on November 25, 1991. At that hearing, the INS agreed that it would proceed on the § 241(a)(1)(B) charge of entry without inspection. Ogbemudia made several requests at this hearing, seeking a transfer of his proceeding to Houston and asking the IJ to set bond. The IJ denied both these requests, although he did grant a continuance so that Ogbemudia could obtain counsel. On December 2, 1991, Ogbemudia appeared before the IJ a second time, again without counsel, explaining that he had been unable to obtain counsel. The IJ granted a second continuance so that Ogbemudia could hire an attorney, but stated clearly that he would grant no more continuances. At this time Ogbemudia renewed his request for bond, which the IJ again refused.
Ogbemudia appeared for a third time before the IJ on December 23, 1991, and for a third time he appeared without counsel. He explained to the IJ that he had contacted two lawyers from the list given to him, but that one attorney had refused to represent him and a second attorney had insisted on payment prior to representation. Ogbemudia claimed he was unable to send the money for attorney's fees due to his detention; that the attorney never came to see him; and that when Ogbemudia phoned the attorney he told Ogbemudia to come see him when he was out on bond. The IJ asked whether Ogbemudia had received any indication from that attorney that he intended to represent Ogbemudia, to which question Ogbemudia replied that he had received nothing but the attorney's business card.
After this exchange, the IJ informed Ogbemudia that he would have to proceed pro se, as he had been warned at the prior hearing that no additional continuances would be granted. Ogbemudia conceded his deportability, admitting that he had been convicted five times, and that he had been sentenced to five years for possession of a counterfeit driver's license. In rendering his decision, the IJ stated:
From everything that I have heard, you are not eligible for any relief from deportation. You served more than six months in jail during the last five years which means you're not eligible for voluntary departure. You were previously deported from the United States in 1988. That in combination with the fact that you have been outside the United States for an extended period of time during the last seven years means that you are also not eligible for suspension of deportation.
He then ordered Ogbemudia deported to Nigeria, the country which Ogbemudia had designated when asked.
One day later, on December 24, 1991, Ogbemudia filed a notice of appeal, claiming that he would be killed by Muslim fundamentalists if deported to Nigeria. In March 1992, Ogbemudia--now represented by counsel--submitted a brief on appeal and a motion to reopen. He did not challenge the deportation order, but requested reopening for consideration of his request for asylum or withholding of deportation.
As a basis for his request, Ogbemudia submitted a declaration explaining his fear of returning to Nigeria, including the fact On review, the BIA characterized Ogbemudia's challenge as a motion to remand to the IJ for consideration of the deportee's request for asylum and withholding of deportation. Nonetheless, the BIA considered the motion as one to reopen, noting that the requirements for a motion for a remand apply equally to a motion to reopen.
of his father's murder by religious fanatics while the father was conducting a Christian church service. In addition, Ogbemudia submitted declarations from his cousin and from his common-law wife, both located in Houston, that Ogbemudia's father had been killed by Muslim fundamentalists. Those affiants also expressed the opinion that Ogbemudia faced the same fate if he returned to Nigeria. Finally, Ogbemudia submitted an undated country report and a magazine article detailing the religious unrest in Nigeria
Ultimately, the BIA rejected Ogbemudia's claim, citing three reasons. First, it noted that the evidence he submitted regarding persecution had been available at his deportation proceeding. The BIA considered unreasonable Ogbemudia's explanation for his failure to seek asylum at the deportation proceeding--he claimed he was unaware he had a right to seek asylum--given his education, his prior deportation, and his exposure to the judicial system. Second, the BIA found that Ogbemudia had failed to demonstrate prima facie eligibility for asylum or withholding of deportation. Finally, the BIA concluded that Ogbemudia's motion failed to show that he would be entitled to discretionary relief, given his five criminal convictions. 6
In immigration cases, we are authorized to review only the decision of the BIA, not that of the IJ. 7 We consider the errors of the IJ only to the extent they affect the decision of the BIA, 8 which itself conducts a de novo review of the administrative record. 9 If, as alleged, Ogbemudia's lack of counsel prevented him from receiving a fair hearing, that violated due process. The BIA, by affirming the allegedly unfair proceedings without addressing the issue of due process, has sanctioned the alleged violation. Consequently, we review Ogbemudia's due process claim de novo.
Ogbemudia's due process claim contains two elements. He first argues that the IJ's decision not to release him on bond, and the effect that decision had on his ability to retain counsel, violated his due process rights. Second, he insists that this court's decision in Partible v. INS 10 entitles him to a new proceeding. We address each contention in turn.
We note at the outset that even though Congress has provided by statute that an alien has a right to obtain counsel at his own expense, 11 an alien does not have a Sixth Amendment right to counsel in an immigration proceeding. 12 Nevertheless, the absence of an attorney may create a due process violation if the defect "impinged upon the fundamental fairness of the hearing in violation of the fifth amendment," 13 and there was substantial prejudice. 14
Despite his need to surmount this stringent standard, Ogbemudia still insists that the IJ's refusal to grant him bond prevented him from obtaining counsel and therefore violated his due process rights. We find this argument to be wholly without merit. Although obtaining counsel while in detention pending a hearing may prove inconvenient, it does not rise to the level of a due process violation. This is especially true in the instant case, given that the IJ allowed Ogbemudia an entire month within which to obtain counsel. Like all aliens detained for deportation, Ogbemudia was given a list of attorney's who would represent him at a reduced fee or for no fee at all. Yet, during his...
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