Onyeme v. U.S. I.N.S.

Decision Date05 June 1998
Docket NumberNo. 96-2257,96-2257
Citation146 F.3d 227
PartiesOkechukwu Uzo ONYEME, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Roger Carl Algase, New York City, for Petitioner. Laura Marlene Friedman, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, DC, for Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Brenda E. Ellison, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before WIDENER, HAMILTON, and MOTZ, Circuit Judges.

Petition for review denied by published opinion. Judge HAMILTON wrote the opinion, in which Judge WIDENER and Judge DIANA GRIBBON MOTZ joined.

OPINION

HAMILTON, Circuit Judge:

Okechukwu Onyeme, a Nigerian citizen, petitions for review of the final order of deportation issued against him by the Board of Immigration Appeals (BIA). Finding no error, we deny the petition for review.

I.

Petitioner Okechukwu Onyeme is a 38-year-old male native and citizen of Nigeria. In 1986, Onyeme obtained a visitor's visa to the United States by fraudulently representing that he was married to a Nigerian woman and had a child. Four days after obtaining the visa, on November 8, 1986, Onyeme entered the United States as a visitor for pleasure. He remained in the United States after the expiration of his visa, and in 1989, he married an American citizen, Kristin Jacobsen.

On December 1, 1989, Jacobsen filed a visa petition on Onyeme's behalf, and Onyeme applied for an adjustment of his status to that of permanent resident under § 245 of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1255. Faced with the fact that he had gained entry into the United States by representing that he was married to a Nigerian citizen, Onyeme submitted a fraudulent Nigerian divorce decree in support of his application for adjustment of status based on his marriage to Jacobsen. Subsequently, on June 27, 1990, Onyeme stated to an Immigration and Naturalization Service (INS) examiner in sworn testimony that his prior marriage had been terminated.

On January 17, 1991, Onyeme's application for permanent residence was approved. In verifying his divorce decree, however, the INS discovered that the document was fraudulent and consequently notified Onyeme that it intended to rescind his permanent resident status pursuant to § 246(a) of the INA, 8 U.S.C. § 1256(a).

In its Notice of Intent to Rescind Status issued to Onyeme, the INS made eleven allegations of fact. At a master calendar hearing on the rescission of Onyeme's permanent resident status on November 24, 1992, Onyeme admitted most of the allegations contained in the notice, including allegation number (7) in which the INS alleged that "[o]n June 27, 1990, [Onyeme] testified before an officer of [the INS] stating that [his] first marriage was legally terminated." (A.R. 1 302).

On October 26, 1993, an INS Immigration Judge (IJ) rescinded Onyeme's status as permanent resident. In rescinding Onyeme's permanent resident status, the IJ relied on Onyeme's admitted conduct in making a willfully false representation to the United States Consul in Nigeria when he represented that he was married to a Nigerian citizen in order to procure a visitor's visa to the United States. Because making a willful misrepresentation of a material fact is a basis on which to exclude an immigrant, the IJ concluded that Onyeme was excludable from the United States at the time he applied to have his status adjusted to that of legal immigrant in 1990.

On December 2, 1993, the INS issued an Order to Show Cause against Onyeme, charging him with deportability under § 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B), for having remained in the United States for a longer period than authorized. 2 On July 5, 1994, an IJ conducted a master calendar hearing on the order to show cause. At this hearing, Onyeme conceded that he was deportable but sought relief in the form of a suspension of deportation or, in the alternative, voluntary departure. Onyeme also represented at this hearing that he had recently obtained an order from the High Court of Lagos, Nigeria declaring that the purported marriage between Onyeme and a Nigerian citizen was null and void and that any record of such a marriage was expunged from the marriage registry. In response, the INS representative asserted that it would investigate the authenticity of the order and planned to get an opinion from the United States Consul in Lagos by March 1995. The IJ then scheduled a hearing on the merits of the deportation proceedings against Onyeme for March 9, 1995.

On July 26, 1994, the INS filed a motion in opposition to Onyeme's application for a suspension of deportation or, in the alternative, voluntary departure. On November 10, 1994, the IJ ruled that Onyeme was eligible to apply for a suspension of deportation under § 244(a) of the INA, 8 U.S.C. § 1254(a). 3 Although the IJ recognized that an alien cannot obtain relief under § 244 unless the alien is found to be of good moral character and that an alien who has given false testimony for purposes of obtaining benefits under the INA is not considered to be of good moral character, the IJ found that the fraudulent divorce document submitted by Onyeme to the INS during his status adjustment proceedings was not "testimony." Therefore, the IJ found Onyeme eligible to apply for suspension of deportation and scheduled a hearing on the merits for March 9, 1995.

On January 19, 1995, the INS filed a motion for reconsideration of the IJ's order on the basis that the IJ failed to consider the oral testimony Onyeme gave the INS examiner when he told the examiner that his Nigerian marriage had been terminated. On March 9, 1995, the hearing on the merits of Onyeme's application for relief from deportation was continued to June 26, 1995.

On May 24, 1995, Onyeme moved for a second continuance on the grounds that currently pending before the BIA was an immigrant visa petition and application for waiver of excludability filed on his behalf by Jacobsen and that in the context of that appeal, the BIA would consider the validity of Onyeme's marriage to Jacobsen. 4 The INS opposed the continuance, arguing that it would be prejudiced by any further delay. Specifically, the INS noted that it opposed Onyeme's request for voluntary departure on the grounds that Onyeme had fraudulently testified before an INS official on June 27, 1990 and could not, therefore, establish that he had been "a person of good moral character for at least five years immediately preceding his application for voluntary departure." 8 U.S.C. § 1254(e) (prescribing conditions for Attorney General's discretionary grant of voluntary departure). 5 Beginning on the day following the June 26, 1995 deportation hearing, Onyeme would be able to assert that he had been a person of good moral character for the five years prior to that date because his fraudulent testimony would have occurred more than five years before. Therefore, the INS argued that it would be prejudiced by even one day's delay in Onyeme's deportation hearing. At the June 26, 1995 deportation hearing, the IJ denied Onyeme's motion for a continuance and granted the INS's motion for reconsideration of the November 10, 1994 decision holding that Onyeme was eligible to apply for suspension of deportation on the basis that the fraudulent divorce document Onyeme submitted to the INS to support his adjustment of status was not "testimony" and, therefore, Onyeme could not be considered to have given "false testimony." See 8 U.S.C. § 1101(f)(6) (providing that no person shall be considered of good moral character who "has given false testimony for the purpose of obtaining any benefits" under the INA). Upon reconsideration, the IJ determined that Onyeme's conduct in giving false oral testimony to an INS examiner on June 27, 1990, when he admittedly told the examiner that all previous marriages had been terminated and submitted a fraudulent divorce certificate, fell within the conduct described in § 101(f)(6), 8 U.S.C. § 1101(f)(6), and precluded a finding of good moral character. The IJ stated that whether Onyeme had actually been married in Nigeria or, alternatively, whether he had never been married and was, therefore, free to marry Kristin Jacobsen, was irrelevant to his decision. Instead, the crucial fact was that Onyeme had falsely informed the INS examiner, in the course of a sworn interview, that his prior marriage had been terminated and that he did so for the purpose of acquiring a benefit under the INA, because it was this conduct that precluded a finding of good moral character. The IJ then concluded that since the fraudulent statement occurred less than five years before, Onyeme was not entitled to either suspension of deportation or voluntary departure. The IJ, therefore, ordered Onyeme deported.

Onyeme appealed the IJ's decision to the BIA. Specifically, Onyeme argued before the BIA that the IJ erred in denying his motion for continuance. Onyeme argued that the IJ's deportation order should be vacated and the case remanded to the IJ in light of his pending appeal of the denial of his visa petition and the unresolved issue of the validity of the Nigerian court decree Onyeme had obtained to prove that he had never been married in Nigeria.

On July 28, 1995, Onyeme and Jacobsen remarried on the strength of the Nigerian court decree establishing that any record of a previous marriage of Onyeme's in Nigeria had been expunged. On August 8, 1995, Jacobsen filed a third immigrant visa petition and a second waiver of excludability application, on Onyeme's behalf, citing the July 1995 remarriage as the basis for her petition. The BIA subsequently dismissed her appeal of the denial of her second visa petition and initial application...

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