Opie v. I.N.S.

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 18, 1995
• Docket: 94-41220
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 94-41220

AGBAI UDEOCHU OPIE,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

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

(October 2, 1995)

Before POLITZ, Chief Judge, HILL1 and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

"Robert" Agbai Udeochu 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.

1 Circuit Judge of the Eleventh Circuit, sitting by designation.

1 BACKGROUND

On a date prior to April 30, 1988, Nigerian citizen "Robert"

Agbai Udeochu 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.

2 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 nonimmigrant alien who remained in the United

States longer than permitted. The IJ denied Opie's requests for

waiver of inadmissibility under §§ 212(h) and (i) of the Act and

found that he was not eligible for an adjustment of status or

voluntary departure 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

Board of Immigration Appeals' order was a final order.

Opie timely filed an appeal to this Court.

2 Opie's Alien Relative petition was approved on July 10, 1990. 3 Revised and redesignated as § 241(a)(1)(B) by § 602 of the Immigration Act of 1990.

3 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 deportability. 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

4 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 nonimmigrant 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") estops 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.

5 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).

In reaching its determination, the BIA considered Opie's false

statements regarding his marital status, his false statements

regarding the amount of money that he was bringing with him to the

United States, the lack of effort he made towards any business

venture upon his arrival in the United States, the false statements

he made to an employer about his work eligibility, his preconceived

intent to remain in the United States without authorization, and

his criminal conviction for credit card fraud. As to equities, the

BIA considered his family ties, his relationship to his step-

children, his employment history, his tax payments, and the

hardships that would be visited upon both he and his family as a

result of deportation.

We find that Opie's claim that the BIA did not carefully

consider all of the evidence presented is not supported by the

record. In its opinion, the BIA discusses many factors which it

considered in reaching its decision. "The BIA need not write an

6 exegesis on every contention...." Ghassan v. INS, 972 F.2d 631,

636 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1412,

122 L.Ed.2d 783 (1993) (internal citations omitted). "Rather, its

opinion must reflect that it has heard and thought and not merely

reacted." Id. at 636 (internal citations omitted). We find that

the order of the BIA evinces a careful consideration of all of the

evidence presented.

Opie also argues that the BIA applied the wrong standard when

it considered waiver under § 212 (i) of the Act. Opie contends

that the BIA erroneously applied the "extreme hardship" standard in

its § 212 (i) determination. Opie claims that the correct standard

under a § 212 (i) determination is one requiring "a showing of

unusual even outstanding equities." The government disagrees and

argues that the BIA applied a standard of balancing "hardship" and

equities.

We agree that it is unclear which standard the BIA applied in

its § 212 (i) waiver determination. However, because § 212(i) does

not expressly provide for standards governing how the Board's

discretion should be exercised, the Attorney General has unusually

broad discretion in granting or denying waivers. Molenda, 998 F.2d

at 293. Yet, regardless of which standard applies, after a careful

review of the record, we believe that the evidence supports a

denial of § 212 (i) waiver under either standard.

After carefully reviewing the record and the BIA's opinion, we

find that the BIA decision is reasoned, supported by substantial

evidence, and not arbitrary, irrational, or contrary to law.

7 Accordingly, the BIA did not abuse its discretion in denying Opie

§§ 212 (h) and (i) waiver relief.

Adjustment of Status

Opie next contends that the BIA abused its discretion by

denying his application for adjustment of status because it failed

to consider significant equities in his case. However, because

Opie did not receive a waiver of inadmissibility, he is not

entitled to an adjustment of status. 8 U.S.C. § 1255(a).

Accordingly, the BIA's denial of Opie's § 1255 request for

adjustment of status is not clearly erroneous and does not

constitute an abuse of discretion.

Voluntary Departure

Finally, Opie argues that the BIA erroneously denied his

request for voluntary departure pursuant to 8 U.S.C. § 1254(e). In

relevant part, § 1254 states,

[T]he Attorney General may, in his discretion, permit any alien under deportation proceedings...to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately proceeding his application for voluntary departure...."

8 U.S.C. § 1254(e). Relief under § 1254(e) is granted at the

Attorney General's discretion. The burden is on the party seeking

relief to show that he is entitled to it.

The immigration judge extensively reviewed the facts in this

case and found that Opie lacks the requisite good moral character

to qualify for voluntary departure. The BIA expressly affirmed the

8 IJ's finding. Upon a complete and de novo review of the record, we

find that the BIA' denial of relief for voluntary departure under

§ 1254(e) is neither clearly erroneous, nor an abuse of discretion.

Judicial Recommendation Against Deportation

Finally, Opie claims that a state trial court "Judicial

Recommendation Against Deportation," which was issued in connection

with Opie's credit card conviction, estops the BIA from considering

his criminal conviction in connection with his petitions for

waiver, adjustment of status, and voluntary departure. Opie did

not raise this issue before the administrative court.4 "We need

not consider issues raised for the first time on appeal." Insilco

Corp. v. United States, 53 F.3d 95, 100 (1995). Accordingly, we

will not consider this issue.

CONCLUSION

For the foregoing reasons, the decision of the Board of

Immigration Appeals is AFFIRMED.

4 In fact, we note that Opie held the opposite position before the BIA. In his the brief to the BIA, Opie stated: "Respondent acknowledges that the criminal conviction is a valid factor for consideration in a discretionary determination." opin\94-41220.opn bch 9