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Oviawe v. Immigration and Naturalization Service

decided: August 10, 1988.

ABEL OSARENTINE OVIAWE, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review of an Order of the Immigration and Naturalization Service.

Cummings, Coffey and Ripple, Circuit Judges.

Author: Ripple

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. § l251(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. § 1341 and for knowingly and fraudulently claiming to be a United States citizen in violation of 18 U.S.C. § 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. § 1251(b)(2),*fn1 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. [*fn2] 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.*fn3 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

Discussi ...


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