Agbai Udeochu Opie v. Immigration and Naturalization Service

66 F.3d 737, 1995 U.S. App. LEXIS 27748, 1995 WL 577077
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 2, 1995
Docket94-41220
StatusPublished
Cited by14 cases

This text of 66 F.3d 737 (Agbai Udeochu Opie v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agbai Udeochu Opie v. Immigration and Naturalization Service, 66 F.3d 737, 1995 U.S. App. LEXIS 27748, 1995 WL 577077 (5th Cir. 1995).

Opinion

DeMOSS, Circuit Judge:

“Robert” Agbai Udeoehu Opie seeks review of a final order of the Board of Immigration Appeals which denies (1) his request for adjustment of immigration status, (2) his application for waiver of deportation, and (3) his request for voluntary departure.

We AFFIRM.

BACKGROUND

On a date prior to April 30,1988, Nigerian citizen “Robert” Agbai Udeoehu Opie (“Opie”) applied for a business visa to the United States. During the application process, Opie indicated that the purpose of his trip was to initiate an import/export business between the United States, Togo, and Nigeria. Specifically, he told the consular office that he planned to travel to Hollywood, California, where he intended to do business. He also stated that he was bringing $10,000 for the purpose of purchasing merchandise and facilitating business. On his visa application, Opie stated that he was married.

On April 30, 1988, Opie was admitted into the United States as a business visitor. His business visa allowed him to remain in the United States until July 14,1988. Opie does not contest that he remained in the United States beyond July 14, 1988.

On December 7, 1988, Opie married an American citizen, Bertha Branch, in Dallas County, Texas. Opie lived with Branch and Branch’s two children from a prior marriage.

On June 8,1989, Opie was arrested for the unauthorized use of a credit card. He was convicted in a Texas state court and sentenced to probation for a term of four years. The state trial court judge issued a Judicial Recommendation against Deportation.

On April 5, 1989, Opie filed a Petition for Alien Relative and an Application for Permanent Residence. 2 Opie also applied for (1) a waiver of inadmissibility pursuant to § 212(h) and § 212(i) of the Immigration and Nationality Act (the “ACT”), (2) an adjustment of his status to that of permanent resident pursuant to § 245 of the Act, and (3) a voluntary departure pursuant to § 244(e) of the Act.

On June 8, 1989, the Immigration and Naturalization Service (“INS”) issued to Opie an order requiring him to show cause why he should not be deported.

On July 11, 1990, a hearing on the merits was held before an immigration judge. The immigration judge (“IJ”) found Opie to be deportable under § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), 3 because he was a non-immigrant alien who remained in the United States longer than permitted. The IJ denied Opie’s requests for waiver of inadmissibility under §§ 245 and 244(e) of the Act, respectively. The IJ ordered Opie to be deported to Nigeria.

On October 6,1994, the Board of Immigration Appeals (“BIA”) affirmed the immigration judge and dismissed Opie’s appeal. The *739 Board of Immigration Appeals’ order was a final order.

Opie timely filed an appeal to this Court.

JURISDICTION

This Court’s jurisdiction arises under § 106 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1105(a). The Act grants jurisdiction to the court of appeals to review final orders of deportation made against aliens within the United States.

DISCUSSION

On appeal, Opie does not contest his de-portability. Rather, he contests the BIA’s denial of his requests for relief from deportation. Specifically, Opie contends that the BIA erred in denying his request for (1) waiver of inadmissibility under §§ 212(h) and (i), (2) adjustment of status under § 245, and (3) voluntary departure under § 244(e). Opie also contends that the BIA erroneously considered his criminal conviction when weighing the equities and determining his moral character. Finally, Opie contends that the BIA erred when it held that he or his family would have to suffer “extreme hardship” as a result of deportation in order for him to qualify for the relief sought. We will address each issue in turn.

“We review final orders of deportation issued by the BIA, examining questions of law de novo, but examining factual findings, such as a finding that an alien is not eligible for the withholding of deportation, solely to see if such findings are supported by substantial evidence.” Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir.1992) (internal citations omitted). “In conducting our reviews we are constrained to give considerable deference to the BIA’s interpretation of the legislative scheme it is entrusted to administer.” Id. at 62 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Opie contends that, with the exception of his current status of inadmissibility which resulted from his criminal conviction, he meets the eligibility requirements for adjustment of status under § 245 of the Act. Further, Opie argues that his inadmissibility should be waived under the discretionary provisions of either § 212(h) or § 212(i) of the Act. Opie claims that, in denying him a waiver of inadmissibility, the BIA placed inordinate weight on the falsehoods in his non-immigrant visa application and failed to give sufficient weight to the hardships that he says he and his family will suffer if he is deported. He argues that the hardships flowing from his deportation are extreme and, coupled with his positive equities in the United States, outweigh his criminal conviction and the falsehoods he made to gain admittance into the United States. Opie also contends that the state court judicial recommendation against deportation (“JRAD”) es-tops the IJ and BIA from considering his conviction as a factor in the eligibility determination for voluntary departure. He claims that he demonstrated good moral character through evidence of family ties, community commitment, employment, and tax payments. Such equities, he claims, outweigh his conviction and falsehoods.

Waiver

The IJ found, and the BIA agreed, that Opie was ineligible for waiver under §§ 212(h) and (i). Opie contends that their respective decisions are not supported by the evidence. Respondent has the burden of both establishing that he is statutorily eligible for the requested relief from deportation and that he merits a favorable exercise of discretion. 8 C.F.R. § 242.17(e). ‘We limit our review to whether denial of a waiver was arbitrary, irrational, or contrary to law.” Molenda v. INS, 998 F.2d 291, 293 (5th Cir.1993) (internal citations omitted).

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Bluebook (online)
66 F.3d 737, 1995 U.S. App. LEXIS 27748, 1995 WL 577077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agbai-udeochu-opie-v-immigration-and-naturalization-service-ca5-1995.