Omagah v. Ashcroft

• Citation: 288 F.3d 254
• Decision Date: 22 April 2002
• Docket Number: No. 01-60373. Summary Calendar.,01-60373. Summary Calendar.
• Parties: Ferdinand OMAGAH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

288 F.3d 254 Ferdinand OMAGAH, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent. No. 01-60373. Summary Calendar. United States Court of Appeals, Fifth Circuit. April 22, 2002.

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Godson Emeka Anyanwu, Anyanwu & Associates, Dallas, TX, for Petitioner.

Anthony W. Norwood, Thomas Ward Hussey, Director, John J. Andre, U.S. Dept. of Justice, Civ. Div., Immigration Litigation, Washington, DC, Anne M. Estrada, U.S INS, Dallas, TX, Christine G. Davis, U.S. INS Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ferdinand Omagah petitions for review of an order of the Attorney General refusing to grant a discretionary suspension of deportation. The Immigration Judge ("IJ") and Board of Immigration Appeals ("BIA") concluded that Omagah's conviction, under 18 U.S.C. § 371, of conspiracy to obtain, possess, and use fraudulent immigration documents barred suspension. We deny the petition for review.

I.

Omagah, a Nigerian citizen, originally entered the United States on August 12, 1981, using an F-1 student visa and resided there from August 12, 1981, to the present, with the exception of two thirty-day visits to see his parents. Omagah applied for permanent residence through the amnesty program, and his application was pending on April 11, 1995.

On August 4, 1995, the Attorney General initiated an order to show cause why Omagah should not be deported because (1) he had overstayed his student visa; and (2) he had been convicted of conspiring to obtain, possess, and use false immigration documents.

On December 19, 1995, the IJ ordered Omagah deported to Nigeria, then considered his request for suspension of deportation and voluntary departure. At the suspension hearing, the government introduced the plea agreement and accompanying factual resume and argued that Omagah was per se ineligible for suspension because the conviction established that he lacked good moral character.

The IJ found that Omagah lacked good moral character for two reasons. First, the IJ agreed that the conspiracy to obtain, possess, and use illegal immigration documents proved, as a matter of law, that Omagah lacked good moral character. Second, the IJ found that Omagah had testified falsely under oath at the suspension hearing: His testimony that he merely was inquiring about his immigration status during the meeting with the immigration officer was belied by the plea agreement and factual resume. The IJ found that Omagah had perpetrated a fraud on the court by testifying falsely. The BIA upheld the IJ's decision on appeal.

II.

The Attorney General has discretion to suspend an alien's deportation for criminal convictions if the alien

is deportable under paragraph (2), (3), or (4) of section 1251(a) of this title; has been physically present in the United

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States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254(a)(2) (1994 ed.) (repealed 1996).¹ So, the statute establishes two prerequisites before the Attorney General may find "exceptional and extremely unusual hardship" and suspend deportation: (1) continuous residence for over ten years and (2) "good moral character." If the alien fails to satisfy one of those prerequisites, the Attorney General lacks the discretion to suspend deportation under § 1254.²

There is a two-part standard to review the BIA's finding that the alien per se lacks "good moral character." Hamdan v. INS, 98 F.3d 183, 185 (5th Cir.1996). First, we consider whether the BIA has applied the correct legal standard to determine good moral character. Id. We must accord deference to the BIA's legal interpretation of "good moral character" and "moral turpitude" as used in the INA. Id. If the phrases are ambiguous, we defer to the BIA's reasonable interpretation. Id.³ We will review de novo, however, the interpretation of federal and state criminal statutes. Hamdan, 98 F.3d at 185. Determining a particular federal or state crime's elements lies beyond the scope of the BIA's delegated power or accumulated expertise.

If we determine that the BIA has interpreted the INA reasonably and the substantive criminal law correctly, we proceed to the second step, in which we use the "substantial evidence" test to evaluate the BIA's factual finding that a specific alien lacks "good moral character." Id. (quotation omitted) (citation omitted). The substantial evidence standard requires only that the BIA's decision be supported by record evidence and be substantially reasonable. Id. (quotation omitted) (citation omitted); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997).

We lack jurisdiction to review the BIA's discretionary decisions. Omagah challenges a BIA decision issued after October 31, 1996, in a deportation case initiated before April 1, 1997, so we have jurisdiction under the transitional rules set

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forth in the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").⁴ IIRIRA's transitional rules strip the courts of appeals of jurisdiction over the Attorney General's "discretionary decisions" over whether to suspend deportation.⁵ For example, we lack the jurisdiction to review the BIA's discretionary judgment concerning whether the alien's citizen family members would suffer "unusual and extremely severe hardship." Moosa, 171 F.3d at 1010-11.

The alien, however, must satisfy the residency requirement and prove statutory eligibility for "good moral character" before the BIA exercises its discretion. The question of "good moral character" is not left entirely to the executive's discretion. Convictions of crimes of "moral turpitude" establish per se an absence of "good moral character."⁶ Where the BIA bases its decision on a past conviction for a crime of "moral turpitude," we should apply our pre-IIRIRA standard of review.⁷ In this case, the BIA based its decision on Omagah's conviction, moral turpitude, and per se ineligibility for suspension. We may review that conclusion, because the statute classifies it as nondiscretionary.

III.

The BIA found that Omagah lacked good moral character because he had committed a crime of moral turpitude. That conclusion is reasonable: Conspiring to obtain, possess, and use illegal immigration documents is a crime of moral turpitude. The crime involves fraud as a central ingredient and requires proof of mens rea sufficient to classify it as a crime of moral turpitude.

A.

We previously have adopted the BIA's definition of moral turpitude:

Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se,

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so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.

Hamdan, 98 F.3d at 186 (quoting BIA's decision in the same case) (internal citations omitted).

We concentrate on the "inherent nature of the crime, as defined in the statute concerned, rather than the circumstances surrounding the particular transgression." Okoro v. INS, 125 F.3d 920, 926 (5th Cir.1997) (citing Okabe v. INS, 671 F.2d 863, 865 (5th Cir.1982)). As a general rule, if a...