UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: August 10, 1988.
ABEL OSARENTINE OVIAWE, PETITIONER,
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
Petition for Review of an Order of the Immigration and Naturalization Service.
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. § 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.
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.
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.
A. General Standard of Review
We have jurisdiction to review "all final orders of deportation." 8 U.S.C. § 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, 13 L. Ed. 2d 90, 85 S. Ct. 156 (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, 78 L. Ed. 2d 401, 104 S. Ct. 584 (1984), which stated in dictum that the disposition of a motion to reopen "is entirely within the BIA's discretion"); see INS v. Abudu, 485 U.S. 94, 108 S. Ct. 904, 911-13, 99 L. Ed. 2d 90 (1988);*fn4 INS v. Rios-Pineda, 471 U.S. 444, 449, 85 L. Ed. 2d 452, 105 S. Ct. 2098 (1985); INS v. Bagamasbad, 429 U.S. 24, 24-25, 50 L. Ed. 2d 190, 97 S. Ct. 200 (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 Shahaudeh-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. § 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 § 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. § 1251(b)(2).
If the INS had sought deportation under § 1251(a)(4), the district court's recommendation to the contrary may have operated as a complete bar to such an action.*fn5 8 U.S.C. § 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, 9 L. Ed. 2d 538, 83 S. Ct. 551 (1963). However, the INS seeks deportation under 8 U.S.C. § 1251(a)(2) which, inter alia, makes an alien deportable for overstaying the time authorized by his visa to remain in the United States.*fn6 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.*fn7 Compare Delgado-Chavez v. INS, 765 F.2d 868, 870 (9th Cir. 1985) (per curiam) (holding BIA can consider § 1251(a)(4) conviction as an adverse factor) with Giambanco, 531 F.2d at 149 (holding BIA cannot consider § 1251(a)(4) conviction as an adverse factor). Both Giambanco and Delgado-Chavez involve factual situations that are similar to each other and similar to this case. In each case, an alien was convicted of a crime involving moral turpitude. In each case, there was a judicial recommendation against deportation based on the conviction. Nevertheless, the INS sought, and obtained, deportation of the alien on other statutory grounds. On appeal, the BIA considered the moral turpitude crimes as an adverse factor in reviewing the petitioners' motions for relief from the deportation proceedings. In Giambanco, the Third Circuit noted that the legislative history of § 1251(b)(2) is silent as to whether such consideration is appropriate. However, the court determined that the BIA ought not consider § 1251(a)(4) convictions, for any reason, once a court recommends no deportation on that ground. The court summarized:
Accordingly, in order (1) to maintain the integrity of the deportation recommendation of the trial judge; (2) to have the discretionary determination made by the actor best able to make it; and (3) to avoid a possibly unjust penalization of aliens such as Giambanco, we hold that the Service cannot take into account as a matter of discretion under section  Giambanco's prior fraud conviction in determining whether he is entitled to adjustment of deportation status.
531 F.2d at 149. In contrast, the Ninth Circuit in Delgalo-Chavez determined that the BIA can consider a conviction for a crime of moral turpitude as an adverse factor. In disagreeing with Giambanco, the Delgado-Chavez court reasoned:
The court in Giambanco maintained that allowing the INS to consider a conviction in adjustment of status proceedings when there is a recommendation against using the, conviction as a basis for deportation renders meaningless the provisions of § 1251(b)(2) which provide for notice and an opportunity for a hearing to the INS. Id. While this argument is not without appeal, the plain language of § 1251(b)(2) limits its application to deportation proceedings under § 1251(a)(4). Therefore, consideration of Delgado-Chavez's embezzlement conviction in connection with his application for voluntary departure was not erroneous.
Id. at 870 (emphasis supplied).
We agree with the view of the Ninth Circuit.*fn8 The plain language of § 1251(b)(2) permits the judicial recommendation to bar deportation only when the deportation is based on § 1251(a)(4) (conviction of a crime of moral turpitude). It does not forbid the consideration of a conviction as an aggravating factor when deportation is based on another statutory provision. See Jew Ten, 307 F.2d at 834 ("As we read § (b), taking cognizance of its history, it can only mean that the sentencing court is limited to making recommendations in § (a)(4) convictions."); United States v. George, 534 F. Supp. 570, 571 (S.D.N.Y. 1982) ("Under the plain wording of the statute, the judicial recommendation provided for by § 1251(b) is limited to that ground of deportation specified in § 1251(a)(2)[sic].").*fn9
As we already have noted, the INS has great discretion in dealing with a motion to reopen. Furthermore, a motion to adjust the status of an alien is an extraordinary remedy. Jain v. INS, 612 F.2d 683, 687 (2d Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2155, 64 L. Ed. 2d 789 (1980); see also Abudu, 108 S. Ct. at 913 and n.11. Therefore, it is especially important that the INS be informed fully of all factors that bear on its exercise of discretion, as long as Congress has not explicitly excluded these factors from consideration. Congress has not done so here. As the BIA correctly has summarized in an earlier case, "[t]he [Immigration and Naturalization] Act nowhere states that the criminal activity and the conviction which resulted therefrom cannot be considered in connection with an application for discretionary relief." In re Gonzalez, 16 I & N Dec. 134, 136 (BIA 1977). After the Gonzalez decision, Congress twice has amended 8 U.S.C. § 1251. Nevertheless, it has failed to preclude explicitly, or even implicitly, the INS from considering criminal convictions in the manner done here. Under such circumstances, we think it is inappropriate to contravene the plain language of the statute by imposing judicial constraints on the factors that the BIA can consider in exercising its discretion. Cf. Wiemerslage v. United States, 838 F.2d 899 (7th Cir. 1988) (where Congress is aware of problem, as evidenced by amendments to statute, we will not upset plain language of statute absent express congressional direction). It would be anomalous to conclude, in the absence of explicit statutory language to the contrary, that in granting this extraordinary relief, see Jain, 612 F.2d at 687; see also Abudu, 108 S. Ct. at 913 and n.11, the BIA is foreclosed from considering adverse information to balance against positive information when weighing the equities of a situation. As the BIA previously and persuasively has noted:
Had no criminal action been instituted against the respondent, the fact of his involvement in the criminal activity could have been brought out and considered in connection with an application for discretionary relief. The court's ruling in Giambanco places him in a position superior to the person who has not been convicted of his crime. Although the fact of his conviction should not preclude him from establishing statutory eligibility for the relief, we are of the opinion that the respondent is neither a person of good moral character nor a person who merits a favorable exercise of discretion.
Gonzalez, 16 I & N Dec. at 136-37; see In re Seda, 17 I & N Dec. 550, 554 (1980) (conviction may be considered as an adverse factor under discretionary review). Accordingly, we hold that the BIA properly considered Mr. Oviawe's prior criminal convictions of moral turpitude as an adverse factor in exercising its discretion to deny Mr. Oviawe relief.
C. Review of the BIA's Decision
We now review the final decision of the BIA under the abuse of discretion standard. Mr. Oviawe challenges the BIA's decision on several grounds. Basically, he contends, the BIA either considered adverse factors erroneously, or failed to consider positive factors in arriving at its determination. We briefly set forth his contentions and then assess their merits.
First, Mr. Oviawe contends that, at his deportation hearing, the INS failed to consider his marriage. However, this matter was not argued before the BIA and is therefore not properly before us now. In any event, it is clear that the BIA was aware of his marriage to an American. Second, he contends that the BIA erroneously considered a purportedly fraudulent visa petition scheme involving his cousin. As already noted, however, it was the immigration judge who considered the visa petition scheme, see supra note 3, and not the BIA, which merely mentioned that the INS alleged such a scheme. Third, Mr. Oviawe contends that the INS distorted the facts surrounding his convictions for mail fraud and making false statements. Although the BIA did set forth the allegations of the INS in discussing the posture of the case, R. at 15-16, the BIA relied on the language contained in the indictment charging Mr. Oviawe with the crimes to which he pleaded guilty. Id. at 19. Moreover, the BIA's summary of the INS' allegations closely track the language of the indictment. Compare R. at 1516 (BIA's summary of INS' contentions) with R. at 128-34 (indictment).
Finally, Mr. Oviawe contends that the INS was guilty of willful misconduct in delaying approval of his relative immigrant visa petition for two and one-half years. The INS has moved to strike this argument and, in the alternative, has moved for leave to respond. In its motion, the INS alleged that Mr. Oviawe did not raise this issue in his opening brief before this court. However, Mr. Oviawe's initial brief, while not employing the label "affirmative misconduct," sets forth the same argument found in his reply brief. Compare Appellant's Br. at 5-7 with Appellant's Reply Br. at 9. Accordingly, the motion to strike the argument is denied.
Turning to the merits of Mr. Oviawe's claim of affirmative misconduct, we find no basis for relief. He relies on two Ninth Circuit cases in which affirmative misconduct by the INS, in the form of inexcusable delay in processing visa petitions, resulted in denial of those petitions. See Villena v. INS, 622 F.2d 1352 (9th Cir. 1980) (en banc); Sun Il Yoo v. INS, 534 F.2d 1325 (9th Cir. 1976). But see Jaa v. INS, 779 F.2d 569 (9th Cir. 1986). Here, in contrast, Mr. Oviawe was granted his relative immigrant visa. Unlike the Ninth Circuit cases, Mr. Oviawe was not prejudiced by the delay. His deportable offense, failure to timely depart, arose well before he even applied for an immigrant visa. In addition, only five months elapsed between Mr. Oviawe's petition for a visa and the INS' commencement of deportation proceedings. As the Supreme Court noted in INS v. Miranda, 459 U.S. 14, 74 L. Ed. 2d 12, 103 S. Ct. 281 (1982) (per curiam):
Even if the INS arguably was negligent in not acting more expeditiously, . . . neither the Government's conduct nor the harm to the respondent is sufficient to estop the Government from enforcing the conditions imposed by Congress for residency in this country.
Id. at 18.
All immigration cases are hard cases because they affect, profoundly, the lives of many. Here, however, it is clear that the BIA acted well within its discretion in refusing to reopen this proceeding. Having reached that conclusion, our task is completed. The petition for review is denied. The order of the Board is affirmed.
IT IS SO ORDERED.