Ajiyosola Solomon v. Attorney General United States

684 F. App'x 102
CourtCourt of Appeals for the Third Circuit
DecidedApril 6, 2017
Docket16-2913
StatusUnpublished

This text of 684 F. App'x 102 (Ajiyosola Solomon v. Attorney General United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ajiyosola Solomon v. Attorney General United States, 684 F. App'x 102 (3d Cir. 2017).

Opinion

OPINION **

FISHER, Circuit Judge.

Ajiyosola Akande Solomon petitions for review of the Board of Immigration-Appeals’ (BIA) decision denying his application for asylum under § 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158, withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and protection under Article 3 of the Convention Against Torture (CAT), as implemented by 8 C.F.R. § 1208.16-18. We will deny the petition.

I.

Solomon, a native of Nigeria, attempted to enter the United States in 1998 using a passport issued to Olaoluwa Victor Ibi-ronke. 1 He lied to immigration officials about his purpose for traveling to the U.S. and was sent back to Nigeria and prohibited from entering or attempting to enter the U.S. for five years. Three months later, Solomon reentered the U.S. as a nonimmigrant tourist, using a passport issued to Ajiyosola Akande Solomon. Solomon thereafter married Joanne Hamilton, a legal permanent resident of the U.S. In 2004, four days after Hamilton became a naturalized U.S. citizen, Solomon filed a petition seeking status as a battered spouse of a U.S. citizen (Form I-360), and applied to register as a permanent resident (Form 1-485). Solomon’s Form 1-485 application indicated that he had never been previously married, that he had never been known by any other name, and that he had never attempted to procure an immigration benefit by fraud or been removed. On December 10, 2008, United States Citizenship and Immigration Services (USCIS) granted Solomon’s application and adjusted his status to lawful permanent resident on the basis of his approved 1-360 petition.

*104 On January 3, 2012, Solomon filed an application for naturalization under § 319 of the INA, On his application, Solomon disclosed, for the first time, that he had been previously married to Folashade Ibi-ronke, but maintained that he had never been known by any other name. USCIS discovered that, at the time he married Hamilton, he was still legally married to Folashade, that in 1998 he attempted to enter the U.S. using a different identity (Ibironke), and that when he made that attempt, he was removed from the U.S. Had Solomon disclosed on his Form 1-485 that, at the time he married Hamilton he was still legally married to Folashade, he would have been found ineligible for lawful permanent-resident status. Accordingly, USCIS denied his naturalization application for failure to demonstrate that he was lawfully admitted for permanent residence.

In July 2013, removal proceedings were initiated against Solomon, who at the time of adjustment of status was inadmissible based on having sought an immigration benefit through fraud. At the beginning of the removal proceedings, Solomon submitted an application for asylum. Solomon claimed that he was persecuted in Nigeria for being a Christian and that he had suffered physical attacks. Ultimately, the Immigration Judge (IJ) found Solomon not credible and denied his applications for asylum, withholding of removal, and CAT protection. Solomon appealed the IJ’s decision to the BIA. The BIA dismissed Solomon’s appeal, determining that Solomon was properly found removable as charged. Solomon timely petitioned for review.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and (b)(9). We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s opinion, we review both decisions. 2 We uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 3 We review the BIA’s legal determinations de novo. 4 ,

III.

A.

We first consider whether, under § 246(a) of the INA, the IJ lacked authority to order Solomon removed. Section 246(a) provides that “[i]f, at any time within five years after the status of a person has been otherwise adjusted ... to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status.” 5 Solomon argues that § 246(a) bars the ordering of removal five years after a petitioner’s improper adjustment of status. We disagree. The statute of limitations bars the “initiation of removal proceedings after fíve years if based on improperly granted [lawful permanent residence] status.” 6 Solomon fraudulently obtained lawful permanent resident status in December 2008. His removal proceed- *105 mgs were initiated in July 2013. Because the proceedings were- initiated within the five-year period, the IJ properly exercised jurisdiction over Solomon’s case.

B.

We next determine whether the IJ erroneously found that Solomon’s claims in support of his asylum application were not credible. An adverse credibility determination is a finding of fact. 7 We will affirm unless the evidence “was so compelling that no reasonable factfinder could fail to find requisite fear of persecution.” 8

The Attorney General has the discretion to grant asylum to “refugees.” 9 A “refugee” is a person unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 10 Asylum seekers “have the burden to establish them eligibility for asylum through credible testimony.” 11 If, after considering the “totality of the circumstances, and all relevant factors,” 12 the IJ determines that an asylum seeker has not met his burdens of proof and persuasion, the IJ must point to “specific, cogent reasons” that support his adverse credibility determination. 13

Here, the IJ based his adverse credibility determination on Solomon’s inconsistent testimony, material discrepancies between Solomon’s testimony and documented evidence, and his evasive demeanor.

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684 F. App'x 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ajiyosola-solomon-v-attorney-general-united-states-ca3-2017.