Adopley v. Atty Gen USA , 280 F. App'x 195 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-21-2008
    Adopley v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-2054
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    Recommended Citation
    "Adopley v. Atty Gen USA" (2008). 2008 Decisions. Paper 1173.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1173
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 07-2054
    __________
    JACOB KWASI ABSOLUTE ADOPLEY,
    Petitioner,
    vs.
    ATTORNEY GENERAL OF
    THE UNITED STATES,
    Respondent.
    __________
    On Petition for Review of Order of the
    Board of Immigration Appeals
    BIA No. A28-779-420
    Immigration Judge: Charles Honeyman
    ___________
    Submitted on May 16, 2008
    ___________
    Before: MCKEE, GARTH, Circuit Judges, and IRENAS,* District Judge.
    (Opinion Filed: May 21, 2008)
    ___________
    OPINION
    ___________
    *
    Hon. Joseph E. Irenas, Judge, United States District Court for the District of New
    Jersey, sitting by designation.
    1
    GARTH, Circuit Judge:
    Jacob Kwasi Absolute Adopley (“Adopley”) petitions this Court for review of the
    Board of Immigration Appeals (“BIA”) order of March 8, 2007, affirming and adopting
    the Immigration Judge’s (“IJ”) decision, which denied Adopley’s applications for
    cancellation of removal, voluntary departure, and waiver of inadmissability because
    Adopley failed to demonstrate “exceptional and extremely unusual hardship” as required
    under 
    8 U.S.C. § 1229
    (b)(1)(D).
    Because Adopley failed to exhaust his administrative remedies before the BIA, we
    lack jurisdiction and therefore dismiss the appeal.
    I.
    A native and citizen of Ghana and born May 23, 1956, Adopley entered the United
    States in November 1983 on a B-2 visitor visa. Upon marrying a U.S. citizen, he became
    a permanent resident in February 1991. Subsequently, Adopley was placed in removal
    proceedings and ordered removed on August 3, 1998, because he adjusted his
    immigration status based on a willful misrepresentation of a material fact. The
    Immigration Judge found that Adopley did not divorce his first spouse until several years
    after entering into a second marriage, contrary to his representation in the application for
    adjustment of status.
    At the initial proceedings in 1998, the Immigration Judge found Adopley
    statutorily ineligible for relief because he lacked good moral character due to the
    misrepresentation on his application. The BIA reversed on the grounds that a false
    statement on an application does not constitute false testimony that automatically
    prohibits relief.
    Upon remand, the IJ, in a comprehensive opinion which thoroughly analyzed the
    record, again denied Adopley’s applications for cancellation of removal, voluntary
    2
    departure, and waiver of inadmissability. While there were certain factors in Adopley’s
    favor, such as 22 years of residency in the United States, educational and occupational
    experiences, contributions to science, and a commitment to the community, the
    Immigration Judge found they were outweighed by negative factors, such as Adopley’s
    demeanor in the court, his accusations of outrage toward judges, his lack of involvement
    in his daughter’s life, unpaid traffic tickets, and refusal to comply with a family court
    order.
    Therefore, the IJ found that Adopley did not deserve a favorable exercise of
    discretion and on July 26, 2005 issued a deportation order, which the BIA subsequently
    affirmed on March 8, 2007. Adopley filed a timely petition for review from this decision.
    II.
    
    8 U.S.C. § 1252
    (a)(1) provides for judicial review of final orders of removal. See
    Romanishyn v. Atty. Gen., 
    455 F.3d 175
    , 180 (3d Cir. 2006). Where, as here, the Board
    adopts the immigration judge’s decision and adds its own reasons, this Court reviews both
    decisions. Fadiga v. Atty. Gen., 
    488 F.3d 142
    , 153, n. 16 (3d Cir. 2007). The standard of
    review for questions of law is de novo. 
    Id. at 153-54
    . Findings of fact are reviewed for
    substantial evidence and, therefore, may not be set aside unless a reasonable fact-finder
    would be compelled to find to the contrary. Gabuniya v. Atty. Gen., 
    463 F.3d 316
    , 321
    (3d Cir. 2006). Finally, we have jurisdiction to determine our jurisdiction. Biskupski v.
    Atty. Gen., 
    503 F.3d 274
    , 278 (3d Cir. 2007).
    III.
    Adopley argues that his due process rights were violated because the IJ admitted
    hearsay evidence at the removal hearing, viz., letters from Adopley’s daughter and ex-
    spouse testifying to his character. The Government responds that this Court lacks
    jurisdiction to review the petition because Adopley failed to exhaust his administrative
    3
    remedies with respect to this claim. In the alternative, the Government argues that
    Adopley’s claim lacks merit because the Federal Rules of Evidence do not apply in
    immigration proceedings and hearsay evidence may be used if it is probative and
    fundamentally fair. It argues that the IJ’s admission of the two letters into evidence was
    consistent with due process because both the daughter and the ex-spouse were present in
    the courtroom and available to testify to the letters’ veracity. App. at 48.
    Under 
    8 U.S.C. § 1252
    (d)(1), a “court may review of a final order of removal only
    if . . . the alien has exhausted all administrative remedies available to the alien as of
    right.” It is well-established that a failure to exhaust administrative remedies results in a
    lack of jurisdiction in the Court of Appeals. See Bonhometre v. Gonzales, 
    414 F.3d 442
    ,
    448 (3d Cir. 2005); Duvall v. Elwood, 
    336 F.3d 228
    , 234 (3d Cir. 2003). Here, the
    Petitioner did not raise before the BIA the issue of the alleged due process violation
    through the admission of hearsay evidence. Therefore, we lack jurisdiction to review the
    petition, and dismiss Adopley’s appeal.
    4