Oluwatoyin Utoh v. U.S. Attorney General , 178 F. App'x 975 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13826 MAY 2, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A28-654-740
OLUWATOYIN UTOH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 2, 2006)
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Oluwatoyin Utoh, a native of Nigeria, has petitioned for review of the final
order of the Board of Immigration Appeals (“BIA”), which adopted the decision of
the immigration judge (“IJ”), ordering deportation and denial of voluntary
departure under former § 241(a)(4) of the Immigration and Nationality Act
(“INA”).1 Specifically, Utoh challenges the IJ’s denial of her application for
suspension of deportation pursuant to 8 U.S.C. § 1254 (repealed 1996).2 Because
Utoh raises a question of law – whether, under the facts of this case, she can
establish good moral character for purposes of eligibility for suspension of
deportation – we have jurisdiction over her petition for review. Because she
cannot establish good moral character during the statutory ten-year period, we
DENY her petition.
I. BACKGROUND
According to the record of administrative proceedings before the INS,3 Utoh
claims that she entered the United States with a non-immigrant visa in 1978.
Administrative Record (“AR”) at 105. In 1989, the INS issued an order to show
1
This section, 8 U.S.C. § 1251(a)(4)(1988), later became 8 U.S.C. § 1251(a)(2) (1994).
In 1996 it was transferred to 8 U.S.C. § 1227.
2
Section 308(b)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), repealed § 1254.
3
On 25 November 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department. Because this case was initiated while the INS was still in existence, this opinion
refers to the agency as the INS rather than the DHS.
2
cause (“OSC”) charging Utoh with deportability, pursuant to INA § 241(a)(4),
because she had been convicted of two crimes involving moral turpitude (“CIMT”)
not arising out of a single scheme of criminal misconduct: on 5 October 1988 she
had been convicted of one count of forgery (2nd degree) and three counts of
financial transaction card theft, in violation of §§ 16-9-2, and 16-9-31 of the
Official Code of Georgia. Id. at 257, 262-63.
In November 1989, the INS filed additional charges of deportability on the
grounds that, on 5 May 1989, Utoh had been convicted of filing a false passport
application, in violation of 18 U.S.C. § 1542. Id. at 254; 230-47. The indictment
alleged that Utoh had committed the offense on 11 December 1987. Id. at 233. In
March 1990, the deportation proceedings against Utoh were administratively
closed so that she could pursue amnesty. Id. at 258. In denying a request for
reduction in the amount of her bond, however, the BIA noted that, “[Utoh] has four
convictions for crimes of moral turpitude, and an arrest warrant for passport fraud.
All of these crimes reflect adversely upon her character and indicate her disrespect
for the laws of the United States.” Id. at 229.
In August 1998, over eight years later, Utoh received a notice to appear
(“NTA”) to show why she should not be removed from the United States.4 Id. at
4
After passage of the IIRIRA, deportable and inadmissible aliens are subject to a single
form of removal proceedings under 8 U.S.C. § 1229a. The IIRIRA re-termed deportation and
exclusion “removal,” and called the written notice initiating proceedings (formerly an OSC) a
3
317-19. At a deportation hearing on 9 January 1999, Utoh conceded deportability
as charged in the OSC, based on her admission that the state convictions were for
CIMTs. Id. at 132; see also id. at 276-77. In her brief in support of eligibility for
relief, Utoh admitted that she had been convicted, in May 1989, for filing a false
passport application in 1987. Id. at 278. She argued that, despite her May 1989
CIMT conviction, she had not actually committed any offenses during the ten years
following the 1988 CIMT convictions that had rendered her deportable, thereby
establishing good moral character and making her eligible for suspension of
deportation under 8 U.S.C. § 1254. Utoh also moved to designate France as her
country for deportation.
At a continuation of the hearing, the IJ rejected Utoh’s request for voluntary
departure, found her deportable, and ordered her deported to France, and if not
accepted there, to Nigeria. Id. at 65-66. Utoh appealed. Before the BIA, the INS
argued that Utoh was statutorily ineligible for suspension of deportation because
she had conceded deportability and fewer than ten years had elapsed between her
1988 CIMT convictions and the filing of the additional charges of deportability in
1989. Id. at 29. The INS made this argument based upon the BIA’s ruling in In re
Notice to Appear (“NTA”). See IIRIRA § 308(b)(6) (striking 8 U.S.C. § 1252b(a)(1)); IIRIRA §
304(a)(3) (adding 8 U.S.C. §§ 1229, 1229a)). Due to complications related to these changes in
terminology, the 1998 NTA in this case was eventually withdrawn and the case proceeded
pursuant to the January 1989 OSC for deportability.
4
Lozada, 19 I & N Dec. 637 (BIA 1988) – that the ten year period required for
suspension of deportation is measured from the date of conviction rather than from
the date of commission of the offense rendering the alien deportable – and the
“stop time” rule established by 8 U.S.C. § 1229b(d)(1).5 The BIA affirmed the IJ’s
decision without opinion. Id. at 7.
This appeal arises out of Utoh’s 2003 petition for habeas relief, pursuant to
28 U.S.C. § 2241.6 In that petition, Utoh argued that (1) the BIA rule announced in
Lozada is inapplicable to her case; and (2) neither Congress nor the BIA, in
interpreting 8 U.S.C. § 1229b(d)(1) in In re Nolasco-Tofino, 22 I. & N. Dec. 632,
641 (BIA 1999), intended for the “stop time” rule established thereby to apply to a
case such as hers, where “eligibility depends upon the accumulation if a certain
period of residence after an otherwise disqualifying event.” Habeas Petition at 11.
In April 2005, a magistrate judge entered a final report and recommendation
that relief be denied. The magistrate judge concluded that the IJ had correctly
found that, because Utoh “was convicted of passport fraud [a CIMT] during the at
5
Under the “stop-time” rule, service of an NTA or OSC for removal proceedings “stops
time” or ends an alien’s period of residence or continuous physical presence in the United States,
for purposes of an application for suspension of deportation. See Tefel v. Reno, 180 F.3d 1286,
1288-90 (11th Cir. 1999) (explaining the history and application of the “stop-time” rule).
6
We dismissed as untimely Utoh’s original petition for review because she filed it thirty-
one days after the BIA’s decision. See Utoh v. United States Att’y Gen., No. 02-16006 (11th
Cir. 2002) (order dismissing petition). We denied her petition for reconsideration. Id. (order
denying petition for reconsideration).
5
least ten-year ‘continuous period’ beginning in October 1988,” she could not prove
that she was a person of good moral character. Report & Recommendation at 6-7.
The report and recommendation also stated that Utoh’s “stop-time” rule argument
was irrelevant because the IJ had not relied upon the rule in denying her
application for suspension of deportation. Id. at 6. Utoh filed objections in which
she argued that common sense dictated that good moral character should depend on
her behavior during the statutory period, rather than on any prior behavior later
resulting in a conviction. Petitioner’s Objections at 3. Utoh did not object to the
magistrate judge’s determination that the “stop-time” rule issue was irrelevant.
Because Congress had, in the meantime, enacted the REAL ID Act, § 106(c) of
which directed that all habeas petitions be treated as petitions for review and ruled
on by federal appellate courts, the district court pretermitted review of Utoh’s
petition and transferred the matter to us.7
II. DISCUSSION
A. Jurisdiction
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
956 (11th Cir. 2005) (per curiam). “We review questions of subject matter
7
Prior to the transfer, the district court granted a motion for stay of deportation through its
final decision on the habeas petition.
6
jurisdiction de novo.” Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
The REAL ID Act amended the judicial review provisions of 8 U.S.C. § 1252 to
provide that “[n]otwithstanding any other provision of law . . . including section
2241 of Title 28 . . . a petition for review filed with an appropriate court of appeals
. . . shall be the sole and exclusive means for judicial review of an order of
removal.” 8 U.S.C. § 1252(a)(5). The REAL ID Act provides that
[i]f an alien’s case, brought under section 2241 of title 28, United
States Code, and challenging a final administrative order of removal,
deportation, or exclusion, is pending in a district court on the date of
the enactment of this division, then the district court shall transfer the
case (or the part of the case that challenges the order of removal,
deportation, or exclusion) to the court of appeals for the circuit in
which a petition for review could have been properly filed under
section 242(b)(2) of the Immigration and Nationality Act.
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 311 (2005). The
provision then specifies that “[t]he court of appeals shall treat the transferred case
as if it had been filed pursuant to a petition for review under such section 242,
except that subsection (b)(1) of such section [requiring that petitions for review be
filed within 30 days of the final removal order] shall not apply.” Id.; see also
Balogun v. United States Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005)
(explaining that habeas review became unnecessary with the passage of §
106(a)(1)(A)(iii) of the REAL ID Act).
7
Although, pursuant to 8 U.S.C. §1252(a)(2)(B)-(C), we do not have
jurisdiction to review discretionary decisions made by the Attorney General or the
Secretary of the Department of Homeland Security, or a final order of removal
against an alien who is removable for having committed a criminal offense
pursuant to 8 U.S.C. §§ 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D), nothing
in § 1252 precludes us from reviewing constitutional claims or questions of law
raised upon a petition for review which is properly filed. 8 U.S.C.
§ 1252(a)(2)(D); see also Balogun, 425 F.3d at 1359 (holding that the REAL ID
Act gave us jurisdiction to review a criminal alien’s petition for review of an order
of removal raising a question of law).
Utoh’s 28 U.S.C. § 2241 petition challenging her deportation order was
pending on the date that the REAL ID Act was enacted, and thus, was properly
transferred to us. See 8 U.S.C. § 1252(a)(5); REAL ID Act § 106(c). Although
her deportation was based upon a CIMT, we have jurisdiction to review her
petition to the extent that it raises questions of law or constitutional claims. See 8
U.S.C. § 1252(a)(2)(D). Whether, under the undisputed facts of her case, Utoh can
establish good moral character for purposes of eligibility for suspension of
deportation is a question of law. Accordingly, we have jurisdiction to review her
petition. See Balogun, 425 F.3d at 1360.
8
B. Good Moral Character
To the extent the BIA expressly adopts the decision of an IJ, we review the
IJ’s decision as a final decision of the agency. See Chacon-Botero, 427 F.3d at
956. We review the legal determinations of an agency such as the BIA de novo.
Nreka v. United States Att’y Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). In so
doing, we accord substantial deference to that agency’s interpretation of statutes
and regulations that it administers. See United States v. Mead Corp., 533 U.S. 218,
226-27, 121 S. Ct. 2164, 2171 (2001) (Chevron 8 deference due when an agency
acts according to legally delegated authority inherent in formal adjudication); INS
v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445 (1999) (“BIA should
be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete
meaning through a process of case-by-case adjudication.’”).
At the time of Utoh’s deportation proceedings, the Attorney General could
order suspension of deportation only where an alien
[was] deportable . . . ; ha[d] been physically present in the United
States for a continuous period of not less than ten years immediately
following the commission of an act, or the assumption of a status,
constituting a ground for deportation, and prove[d] that during all of
such period [s]he ha[d] been and [was still] a person of good moral
character.
8
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.
Ct. 2778, 2781-82 (1984).
9
8 U.S.C. § 1254(a)(2) (repealed 1996). Even when an alien established these
factors, the decision of whether to grant suspension of deportation remained within
the discretion of the Attorney General. Gomez-Gomez v. INS, 681 F.2d 1347,
1349 (11th Cir. 1982). The applicant for suspension bore the burden of
demonstrating both statutory eligibility and that the equities merited a favorable
exercise of discretion. 8 C.F.R. § 240.64(a) (2001).
Federal law provides that any alien who, at any time after admission, is
convicted of two or more CIMTs, not arising out of a single scheme of criminal
misconduct, is deportable. 8 U.S.C. § 1227(a)(2)(A)(ii).9 The BIA has clarified
that the ten-year period, when deportability involves CIMTs, begins with the
conviction rather than the commission of the CIMTs. Lozada, 19 I. & N. Dec. at
640. Federal law also provides that no person shall be found to be a person of
good moral character who, during the period for which good moral character is
required to be established, admits committing acts which constitute the essential
elements of a CIMT. 8 U.S.C. § 1182(a)(2)(A); 8 U.S.C. § 1101(f)(3). The BIA
has clarified that an alien’s “conviction for making false statements, in order to
fraudulently obtain a passport in another person’s name, is [a conviction] for a
crime involving moral turpitude.” In re Correa-Garces, 20 I. & N. Dec. 451, 454
(BIA 1992).
9
Formerly, INA § 241(a)(4); 8 U.S.C. § 1251(a)(4) (1988).
10
In this case, the IJ concluded that “respondent has less than 10 years of good
moral character based upon the conviction for passport fraud that occurred
5/5/1989” and found that she was “not eligible for the relief of suspension of
deportation.” AR at 65. The IJ’s decision is supported by law. First, it is
undisputed that Utoh was rendered deportable by the 1988 CIMT convictions. See
8 U.S.C. § 1227(a)(2)(A)(ii). Thus, the ten-year period immediately following her
assumption of deportability would have begun in October 1988 and run through
October 1998. Second, it is undisputed that Utoh was convicted of making a false
statement on a passport application in May 1989. Utoh’s May 1989 conviction
was properly considered a CIMT. See Correa-Garces, 20 I. & N. Dec. at 454. As a
result, Utoh could not be regarded as a person of good moral character because the
May 1989 CIMT conviction occurred during the ten-year period for which good
moral character was required for eligibility for suspension of deportation. See 8
U.S.C. § 1182(a)(2)(A); 8 U.S.C. § 1101(f)(3). Thus, as a matter of law, Utoh’s
May 1989 CIMT conviction deprived her of good moral character status and left
her ineligible for suspension of deportation.10
10
Because it appears that the IJ made his decision based on the third eligibility
requirement – good moral character – rather than on the ten-year residency requirement, and
because that decision is supported by law, we do not reach the INS’s arguments regarding the
“stop time” rule, 8 U.S.C. § 1229b(d)(1).
11
III. CONCLUSION
Utoh has petitioned for review of the final order of the BIA, which adopted
the decision of the IJ ordering deportation and denial of voluntary departure under
the former INA. Because, as a matter of law, Utoh could not establish good moral
character, she could not satisfy the initial elements required for eligibility of
suspension of deportation. Accordingly, we DENY her petition.
12