Oviawe v. I.N.S.

• Citation: 853 F.2d 1428
• Decision Date: 10 August 1988
• Docket Number: No. 87-1853,87-1853
• Parties: Abel Osarentine OVIAWE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1428

853 F.2d 1428

Abel Osarentine OVIAWE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 87-1853.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1988.

Decided Aug. 10, 1988.

Diana Kenney, Carper & Rubesh, Chicago, Ill., for petitioner.

Charles E. Pazar, Office of INS and Litigation, Civ. Div., U.S. Dept. of Justice, Washington D.C., for respondent.

Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Abel Osarentine Oviawe, an alien residing in the United States, petitions for review of a final decision of the Board of Immigration Appeals (BIA) denying his motion to reopen deportation proceedings in order to consider his application for adjustment of status. Mr. Oviawe previously had been found deportable for overstaying the time authorized in his visa in violation of 8 U.S.C. Sec. 1251(a)(2) (authorizing deportation of any alien who "is in the United States in violation of any ... law of the United States"). For the reasons set forth in this opinion, we deny the petition for review and affirm the decision of the BIA.

I Background

Mr. Oviawe is a citizen of Nigeria. On May 25, 1979, he came to the United States on a business visa with an expiration date of July 10, 1979. He did not depart on that date, nor has he ever left the United States. In June 1982, he married an American citizen. On October 7, 1982, Mrs. Oviawe filed a relative immigrant visa petition on Mr. Oviawe's behalf; at the same time, Mr. Oviawe filed an application for status as a permanent resident. Later that same month, he was indicted for mail fraud in violation of 18 U.S.C. Sec. 1341 and for knowingly and fraudulently claiming to be a United States citizen in violation of 18 U.S.C. Sec. 1001. He pleaded guilty to both offenses and the district court imposed a sentence of five years probation. The sentencing judge recommended, on the authority of 8 U.S.C. Sec. 1251(b)(2), ¹ that the Immigration and Naturalization Service (INS) not deport Mr. Oviawe on the basis of these convictions.

On February 22, 1983, the Chicago District of the INS denied Mr. Oviawe's application for permanent residency. Then, on March 21, 1983, the INS sought deportation of Mr. Oviawe on the ground that he had overstayed his 1979 visa. A hearing before an immigration judge followed. At his deportation hearing, Mr. Oviawe admitted that he had overstayed his visa and conceded that he was deportable as a result. The judge found Mr. Oviawe deportable, but permitted him voluntary departure until June 20, 1983. Mr. Oviawe did not appeal this decision to the BIA. Instead, Mr. Oviawe applied for an extension of his departure date. The application was denied. Mr. Oviawe did not voluntarily depart by June 20, 1983, and the INS issued a warrant for his deportation. The warrant ordered Mr. Oviawe to surrender himself for deportation on July 12, 1983. He never complied with the order and, instead, now contends that he never received notice of the warrant. In November 1983, Mrs. Oviawe gave birth to a son. Mr. Oviawe ultimately was apprehended by the INS on April 16, 1985. Thereafter, he filed a motion to stay his deportation with the Chicago District of the INS.

On April 22, 1985, in a parallel proceeding to the deportation matter, the INS approved the relative immigrant visa filed by Mrs. Oviawe on October 7, 1982. In effect, this approval permits Mr. Oviawe, if deported, to apply for an immigrant visa at the American Embassy in Lagos, Nigeria. However, on April 24, 1985, the INS denied the motion to stay deportation. On July 3, 1985, Mr. Oviawe filed a motion to reopen the deportation proceeding in order to permit an adjustment of status to that of a permanent resident. He based his motion upon his marriage, his child, and the approved petition of April 22, 1985. An immigration judge denied the motion. Mr. Oviawe appealed to the BIA. The BIA affirmed the decision of the immigration judge not to reopen the proceedings. Mr. Oviawe now petitions for review of that decision.

II Opinion of the BIA

In upholding the decision of the immigration judge to deny reopening of Mr. Oviawe's deportation proceedings, the BIA held that Mr. Oviawe "has failed to establish that, as a discretionary matter, these proceedings should be reopened. He has failed to make a prima facie showing that his application for adjustment of status would be granted in the exercise of discretion. ² Although the respondent's United States citizen wife and son are significant equities, they are outweighed by the adverse factors of record." In re Oviawe, No. A23 133 027--Chicago, order at 5 (BIA Jan. 21, 1987) [hereinafter Order]; R. at 18. The BIA set forth two adverse factors: First, Mr. Oviawe failed timely to depart the United States; and second, he had been convicted for mail fraud and for knowingly making false statements. ³ The BIA concluded that Mr. Oviawe's "deliberate flouting of our laws," id. at 6, precluded him from obtaining the extraordinary relief that he sought.

III Discussion

A. General Standard of Review

We have jurisdiction to review "all final orders of deportation." 8 U.S.C. Sec. 1105a(a). This authority, with exceptions not applicable here, extends to a denial of a motion to reopen. Variamparambil v. INS, 831 F.2d 1362, 1364-65 (7th Cir.1987); Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983); Villena v. INS, 622 F.2d 1352, 1358-59 (9th Cir.1980) (en banc); see Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam). In reviewing a final order of the BIA, we previously have noted, "[t]he discretion of immigration officials is exceptionally broad. The Supreme Court recently suggested that it is absolute." Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir.1985) (interpreting INS v. Phinpathya, 464 U.S. 183, 188 n. 6, 104 S.Ct. 584, 588 n. 6, 78 L.Ed.2d 401 (1984), which stated in dictum that the disposition of a motion to reopen "is entirely within the BIA's discretion"); see INS v. Abudu, --- U.S. ----, 108 S.Ct. 904, 911-13, 99 L.Ed.2d 90 (1988); ⁴ INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 2101, 85 L.Ed.2d 452 (1985); INS v. Bagamasbad, 429 U.S. 24, 24-25, 97 S.Ct. 200, 200-201, 50 L.Ed.2d 190 (1976) (per curiam). Accordingly, we have fashioned a standard of review that is especially deferential to final decisions of the BIA:

The scope of our review is extremely narrow. We recently decided that the denial of a motion to reopen will be overturned only if it (1) was made without a rational explanation, (2) inexplicably departed from established policies, or (3) rested on an impermissible basis such as invidious discrimination against a particular race or group. Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985). The [BIA's] decision need only be reasoned, not convincing. Id. at 1266. And although in a motion to reopen an alien must show prima facie eligibility for the relief he seeks, Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983), the INS has the discretion to deny a motion to reopen even if the movant has made out a prima facie case.

El-Gharabli v. INS, 796 F.2d 935, 937 (7th Cir.1986) (per curiam) (footnote omitted); accord Shahandeh-Pey v. INS, 831 F.2d 1384, 1387 (7th Cir.1987); Hernandez-Patino v. INS, 831 F.2d 750, 752 (7th Cir.1987); Patel v. INS, 811 F.2d 377, 382 (7th Cir.1987).

Here, as already noted, the BIA relied on two principal grounds for upholding the decision of the immigration judge to deny Mr. Oviawe's motion to reopen on discretionary grounds: (1) that Mr. Oviawe violated the immigration judge's order to depart voluntarily; and (2) that he committed criminal acts soon after he arrived in the United States. Order at 6. The BIA's consideration of the second issue, the criminal convictions, raises a preliminary question of law--involving statutory construction and a conflict in the courts of appeals--that we must resolve de novo. We turn first to that question.

B. Applicability of Judicial Recommendation Against Deportation

Section 1251(a)(4) of Title 8 of the United States Code provides in relevant part that an alien is to be deported if he 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...." 8 U.S.C. Sec. 1251(a)(4). It is not disputed that the crimes of which Mr. Oviawe was convicted involve moral turpitude. Section 1251(b)(2), however, makes Sec. 1251(a)(4) inapplicable "if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported...." 8 U.S.C. Sec. 1251(b)(2).

If the INS had sought deportation under Sec. 1251(a)(4), the district court's recommendation to the contrary may have operated as a complete bar to such an action. ⁵ 8 U.S.C. Sec. 1251(b)(2); see Giambanco v. INS, 531 F.2d 141, 147 (3d Cir.1976); Jew Ten v. INS, 307 F.2d 832, 835 (9th Cir.1962), cert. denied, 371 U.S. 968, 83 S.Ct. 551, 9 L.Ed.2d 538 (1963). However, the INS seeks deportation under 8 U.S.C. Sec. 1251(a)(2) which, inter alia, makes an alien deportable for overstaying the time authorized by his visa to remain in the United States. ⁶ Therefore, the issue presented here is whether the BIA can consider the convictions, notwithstanding the judicial recommendation against deportation, as an adverse factor in a motion to reopen deportation proceedings originally based on another subsection of the statute.

Two circuits have ruled squarely on this matter and have come to different conclusions. ⁷ Compare Delgado-Chavez v. INS, 765 F.2d 868, 870 (9th Cir.1985) (per curiam) (holding BIA can consider Sec. 1251...