Okoroha v. I.N.S., 82-1291

• Decision Date: 10 August 1983
• Docket Number: No. 82-1291,82-1291
• Citation: 715 F.2d 380
• Parties: Adolphus Anyiam OKOROHA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, United States Department of Justice, United States of America, Respondent. and Cynthia C. Okoro, Intervenor/Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 380

715 F.2d 380

Adolphus Anyiam OKOROHA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, United States

Department of Justice, United States of America, Respondent.

and

Cynthia C. Okoro, Intervenor/Petitioner.

No. 82-1291.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 17, 1982.

Decided Aug. 10, 1983.

Lauri Steven Filppu and John T. Bannon, Jr., Dept. of Justice, Washington, D.C., Robert Kendall, Jr., Atty., Gen. Litigation and Legal Advice Section, Dept. of Justice, Washington, D.C., for respondent.

Alan H. Kirshen, Omaha, Neb., for petitioner.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Adolphus Okoroha petitions this court for review of a decision of the Board of Immigration Appeals (BIA) finding him deportable on the grounds that he had been convicted of a crime involving moral turpitude and had been sentenced to a term of confinement for one year or more pursuant to 8 U.S.C. § 1251(a)(4) (1976). Okoroha also petitions for review of the BIA's refusal to withhold deportation on the ground of persecution pursuant to 8 U.S.C. § 1253(h)(1) (Supp. IV 1980) and the BIA's failure to consider his claims of hardship relief under various statutory provisions. Although we find Okoroha deportable, for the reasons discussed below, we reverse and remand this case for further consideration of Okoroha's claims of persecution and hardship.

We first discuss Okoroha's deportability. Okoroha is a citizen of Nigeria and first entered this country on March 19, 1973, as a nonimmigrant student. On May 26, 1977, Okoroha was granted permanent resident status. On January 17, 1978, Okoroha was convicted by a jury of possession of stolen mail. 18 U.S.C. § 1708 (1976). The district court sentenced Okoroha to a term of three years imprisonment but suspended the sentence and placed him on two years probation. After the conviction, the Immigration and Naturalization Service (INS) issued a show cause order charging Okoroha with deportability under 8 U.S.C. § 1251(a)(4). The section provides deportation for any alien who is "convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more."

On March 20, 1979, and October 23, 1979, Okoroha appeared with counsel before an immigration judge, who found Okoroha deportable. Okoroha appealed the immigration judge's finding of deportability to the BIA. The BIA held that possession of stolen mail was a crime of moral turpitude because knowledge that the article of mail had been stolen was an essential element of the offense, ¹ citing, Matter of R, 6 I. & N. Dec. 772 (BIA 1955) (knowing possession of stolen goods). The BIA further held that a suspended sentence was a sentence to confinement within the meaning of § 1251(a)(4), citing, Matter of De La Cruz, 15 I. & N. Dec. 616 (BIA 1976).

We are mindful that deportation is a harsh remedy. Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964). This court, however, must give deference to an agency's interpretation of a statute that it is charged with administering. INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1980) (per curiam). "The Attorney General and his delegates have the authority to construe [statutory term] 'extreme hardship' narrowly should they deem it wise to do so." Id. at 145, 101 S.Ct. at 1031. Here, we find no basis to overturn the BIA's finding that possession of stolen mail is a "crime of moral turpitude," Lozano-Giron v. INS, 506 F.2d 1073 (7th Cir.1974) (possession of counterfeit currency), and that a suspended sentence is a "sentence of confinement," Velez-Lozano v. INS, 463 F.2d 1305 (D.C.Cir.1972) (suspended sentence). ²

We now discuss Okoroha's claim of withholding of deportation pursuant to 8 U.S.C. § 1253(h)(1). The section provides that the "Attorney General shall not deport any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." ³ Okoroha left Nigeria in 1972 during the Nigerian-Biafran conflict. Okoroha had been an officer in the Biafran Air Force. Okoroha first went to Switzerland and then to West Germany, where he was "Secretary of Biafra In-Exile" and active in the Biafran relief movement and in publishing anti-Nigerian literature.

Okoroha applied for a withholding of deportation, alleging that if he returned to Nigeria he would be subject to persecution on account of his membership in the Ibo tribe, a minority ethnic group, his religion, ⁴ and his involvement in the Biafran movement. Okoroha stated in his application and testified at his hearing that he feared he would be murdered if he returned to Nigeria because of his anti-government activities. He testified that his mother and father had been murdered and that his family home had been burned in retaliation for his activities. In support of his allegations, he submitted various documents relating to the Nigerian Civil War, the Biafran movement, and the political unrest following the cessation of hostilities. Okoroha also submitted letters from townspeople warning him not to return to Nigeria. The immigration judge reviewed Okoroha's application, the supporting documentation, his testimony, and a United States Department of State letter ⁵ and concluded that Okoroha failed to carry his burden of establishing a legitimate fear of persecution.

Okoroha appealed the immigration judge's refusal to withhold deportation to the BIA. The BIA held that Okoroha failed to establish a "clear probability of persecution" because he had not substantiated his allegations with objective evidence, as was required by Matter of Dunar, 14 I. & N. Dec. 310, 316 (1973). ⁶

We recognize that our scope of review of decisions to withhold deportation is limited. ⁷ However, in this case, we are unable to review the BIA's finding that Okoroha did not meet his burden of proof of persecution because none of the documents that Okoroha submitted to the immigration judge are contained in the certified transcript on appeal. Furthermore, although it is not apparent from the BIA's written decision, on appeal the INS concedes that these "documents were not physically before the [BIA]." Brief for Respondent at 15. The agency, not the alien, is responsible for preparing the record on appeal. See generally 1 C. Gordon & H. Rosenfeld, Immigration and Nationality Law § 1.10(d) (rev.ed. 1982). ⁸ Here, this court has no choice but to remand this case to the INS for inclusion of Okoroha's documentation into the record on appeal. See Carr v. Coomey, 454 F.Supp. 367, 368 (D.Mass.1978) (remand because "so-called certified administrative record of the Immigration and Naturalization Service [was] so incomplete as to establish nothing"). See also J. Wasserman, Immigration Law and Practice 398 (3d ed. 1978) ("When the administrative record is incomplete or inaccurate, remand by the courts to the immigration service is considered appropriate.") (footnote omitted).

The BIA must then carefully review all of Okoroha's supporting documentation in light of his testimony and again evaluate his persecution claim. In order for this court to review the BIA's decision, the BIA must expressly set forth the evidence it considered and the basis of its decision. As the Fifth Circuit has stated in a related context (BIA's consideration of discretionary hardship relief):

The Board's [BIA's] decision must reflect that it has meaningfully addressed and reached a reasoned conclusion on the alien's specific assertions of hardship that are based on evidence. The Board has a duty "to 'give reasons which show that it has properly considered the facts which bear on its decision.' " The reasons given by the Board of denial of relief must "reflect[ ] consideration of" the relevant evidence of claimed hardship. As the reviewing Court, we must "make our decision," concerning the factors considered by the Board, "based on the Board's own articulation of its actions," rather than on assumptions.

Ramos v. INS, 695 F.2d 181, 188 (5th Cir.1983) (citations omitted). The court explained that "[t]o affirm on the theory that the Board necessarily considered whatever petitioner asserted would free the Board of the obligation to articulate a reasoned basis for its decision, eliminating any guarantee of rationality." Id., citing Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir.1981).

On remand if the INS cannot locate the documentation that Okoroha originally submitted to the immigration judge, then the INS must afford Okoroha an opportunity to submit new documentation and again appear before an immigration judge on his claim of persecution.

In addition, Okoroha claims that the BIA failed to review the immigration judge's denial of hardship relief under a variety of statutory provisions. Okoroha is married to an American citizen and is the father of an American child born in April 1975. Okoroha's wife is confined to a mental institution and he alleges he is primarily responsible for the care of his young child. The BIA responds that it did not review the denial of hardship relief because Okoroha did not appeal the judge's denial to the BIA. We disagree and believe that Okoroha sufficiently apprised the BIA of his hardship claims. Okoroha argued to the BIA that his deportation would result in the de facto deportation of his wife and daughter. In Mendez v. Major, 340 F.2d 128 (8th Cir.1965), we rejected the argument that deportation of an alien would result in the unconstitutional de facto deportation of his dependents. This court, however, considered the argument in the context of a hardship claim. In Mendez we stated that "Congress has the power to determine the...