Onyeme v. INS ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OKECHUKWU UZO ONYEME,
Petitioner,
v.
No. 96-2257
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A29-296-890)
Argued: April 6, 1998
Decided: June 5, 1998
Before WIDENER, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Petition for review denied by published opinion. Judge Hamilton
wrote the opinion, in which Judge Widener and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Roger Carl Algase, New York, New York, for Petitioner.
Laura Marlene Friedman, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assis-
tant Attorney General, Brenda E. Ellison, Senior Litigation Counsel,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
HAMILTON, Circuit Judge:
Okechukwu Onyeme, a Nigerian citizen, petitions for review of the
final order of deportation issued against him by the Board of Immi-
gration Appeals (BIA). Finding no error, we deny the petition for
review.
I.
Petitioner Okechukwu Onyeme is a 38-year-old male native and
citizen of Nigeria. In 1986, Onyeme obtained a visitor's visa to the
United States by fraudulently representing that he was married to a
Nigerian woman and had a child. Four days after obtaining the visa,
on November 8, 1986, Onyeme entered the United States as a visitor
for pleasure. He remained in the United States after the expiration of
his visa, and in 1989, he married an American citizen, Kristin Jacob-
sen.
On December 1, 1989, Jacobsen filed a visa petition on Onyeme's
behalf, and Onyeme applied for an adjustment of his status to that of
permanent resident under § 245 of the Immigration and Nationality
Act (INA), codified at 8 U.S.C. § 1255. Faced with the fact that he
had gained entry into the United States by representing that he was
married to a Nigerian citizen, Onyeme submitted a fraudulent Nige-
rian divorce decree in support of his application for adjustment of sta-
tus based on his marriage to Jacobsen. Subsequently, on June 27,
1990, Onyeme stated to an Immigration and Naturalization Service
(INS) examiner in sworn testimony that his prior marriage had been
terminated.
On January 17, 1991, Onyeme's application for permanent resi-
dence was approved. In verifying his divorce decree, however, the
INS discovered that the document was fraudulent and consequently
notified Onyeme that it intended to rescind his permanent resident sta-
tus pursuant to § 246(a) of the INA, 8 U.S.C.§ 1256(a).
In its Notice of Intent to Rescind Status issued to Onyeme, the INS
2
made eleven allegations of fact. At a master calendar hearing on the
rescission of Onyeme's permanent resident status on November 24,
1992, Onyeme admitted most of the allegations contained in the
notice, including allegation number (7) in which the INS alleged that
"[o]n June 27, 1990, [Onyeme] testified before an officer of [the INS]
stating that [his] first marriage was legally terminated." (A.R.1 302).
On October 26, 1993, an INS Immigration Judge (IJ) rescinded
Onyeme's status as permanent resident. In rescinding Onyeme's per-
manent resident status, the IJ relied on Onyeme's admitted conduct
in making a willfully false representation to the United States Consul
in Nigeria when he represented that he was married to a Nigerian citi-
zen in order to procure a visitor's visa to the United States. Because
making a willful misrepresentation of a material fact is a basis on
which to exclude an immigrant, the IJ concluded that Onyeme was
excludable from the United States at the time he applied to have his
status adjusted to that of legal immigrant in 1990.
On December 2, 1993, the INS issued an Order to Show Cause
against Onyeme, charging him with deportability under
§ 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B), for having
remained in the United States for a longer period than authorized.2 On
July 5, 1994, an IJ conducted a master calendar hearing on the order
to show cause. At this hearing, Onyeme conceded that he was deport-
able but sought relief in the form of a suspension of deportation or,
in the alternative, voluntary departure. Onyeme also represented at
_________________________________________________________________
1 "A.R." refers to the INS Administrative Record in this case.
2 This provision setting forth classes of deportable aliens has been
recodified at 8 U.S.C. § 1227(a) and amended, pursuant to the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 208, § 305(a), 1996 U.S.C.C.A.N. (110 Stat.)
1570, 1651. THE IIRIRA was enacted on September 30, 1996, and its
effective date was April 1, 1997. While certain transitional rules apply
to appeals from final orders entered between October 31, 1996 and
March 31, 1997, see IIRIRA § 309(c)(4)(A), Onyeme's deportation order
became final on August 6, 1996, making the applicable provision the
pre-amendment provision that was codified at 8 U.S.C. § 1251(a). We
will, therefore, refer to the deportation provisions that apply to this
appeal as previously codified at 8 U.S.C. § 1251(a).
3
this hearing that he had recently obtained an order from the High
Court of Lagos, Nigeria declaring that the purported marriage
between Onyeme and a Nigerian citizen was null and void and that
any record of such a marriage was expunged from the marriage regis-
try. In response, the INS representative asserted that it would investi-
gate the authenticity of the order and planned to get an opinion from
the United States Consul in Lagos by March 1995. The IJ then sched-
uled a hearing on the merits of the deportation proceedings against
Onyeme for March 9, 1995.
On July 26, 1994, the INS filed a motion in opposition to
Onyeme's application for a suspension of deportation or, in the alter-
native, voluntary departure. On November 10, 1994, the IJ ruled that
Onyeme was eligible to apply for a suspension of deportation under
§ 244(a) of the INA, 8 U.S.C. § 1254(a). 3 Although the IJ recognized
that an alien cannot obtain relief under § 244 unless the alien is found
to be of good moral character and that an alien who has given false
testimony for purposes of obtaining benefits under the INA is not
considered to be of good moral character, the IJ found that the fraudu-
lent divorce document submitted by Onyeme to the INS during his
status adjustment proceedings was not "testimony." Therefore, the IJ
found Onyeme eligible to apply for suspension of deportation and
scheduled a hearing on the merits for March 9, 1995.
On January 19, 1995, the INS filed a motion for reconsideration of
the IJ's order on the basis that the IJ failed to consider the oral testi-
mony Onyeme gave the INS examiner when he told the examiner that
his Nigerian marriage had been terminated. On March 9, 1995, the
hearing on the merits of Onyeme's application for relief from deporta-
tion was continued to June 26, 1995.
_________________________________________________________________
3 The IIRIRA repealed § 244 and provides for a new procedure, called
"cancellation of removal" in place of the suspension of deportation relief
previously available under § 244(a) of the INA. See IIRIRA, §§ 304,
308(b)(7); see also Astrero v. INS, 104 F.3d 264, 266 (9th Cir. 1996)
(discussing suspension of deportation and the new cancellation of
removal provisions). The new cancellation of removal procedure is codi-
fied at 8 U.S.C. § 1229b. As discussed in footnote 2, infra, the provisions
of the IIRIRA do not apply to Onyeme's deportation proceedings and,
therefore, we will refer to the suspension of deportation proceedings as
previously codified at § 244(a) of the INA, 8 U.S.C. § 1254(a).
4
On May 24, 1995, Onyeme moved for a second continuance on the
grounds that currently pending before the BIA was an immigrant visa
petition and application for waiver of excludability filed on his behalf
by Jacobsen and that in the context of that appeal, the BIA would con-
sider the validity of Onyeme's marriage to Jacobsen. 4 The INS
opposed the continuance, arguing that it would be prejudiced by any
further delay. Specifically, the INS noted that it opposed Onyeme's
request for voluntary departure on the grounds that Onyeme had
fraudulently testified before an INS official on June 27, 1990 and
could not, therefore, establish that he had been"a person of good
moral character for at least five years immediately preceding his
application for voluntary departure." 8 U.S.C.§ 1254(e) (prescribing
conditions for Attorney General's discretionary grant of voluntary
departure).5 Beginning on the day following the June 26, 1995 depor-
tation hearing, Onyeme would be able to assert that he had been a per-
son of good moral character for the five years prior to that date
because his fraudulent testimony would have occurred more than five
years before. Therefore, the INS argued that it would be prejudiced
by even one day's delay in Onyeme's deportation hearing. At the June
26, 1995 deportation hearing, the IJ denied Onyeme's motion for a
_________________________________________________________________
4 This visa petition was the second immigrant visa petition filed by
Jacobsen on Onyeme's behalf and, with it, Jacobsen also filed her first
application for a waiver of excludability on Onyeme's behalf. These
were filed by Jacobsen on Onyeme's behalf some time after deportation
proceedings were instituted against Onyeme in 1993. Unlike in the first
visa petition, Jacobsen asserted in this petition that Onyeme had never
been married in Nigeria. The visa petition and waiver application were
denied and subsequently appealed to the BIA. This appeal was pending
on May 24, 1995, when Onyeme requested a continuance of the deporta-
tion hearing.
5 This provision setting forth the requirements for eligibility for volun-
tary departure, in lieu of deportation, has been recodified at 8 U.S.C.
§ 1229c and amended, pursuant to the IIRIRA, Pub. L. No. 208,
§ 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) 1570, 1648. As discussed in
footnote 2, infra, the provisions of IIRIRA are not applicable to this
appeal, as Onyeme's deportation order became final on August 6, 1996,
prior to the effective date of the IIRIRA. Therefore, the applicable volun-
tary departure provision is the pre-amendment provision that was codi-
fied at 8 U.S.C. § 1254(e). Accordingly, we will refer to the voluntary
departure provisions as previously codified at 8 U.S.C. § 1254(e).
5
continuance and granted the INS's motion for reconsideration of the
November 10, 1994 decision holding that Onyeme was eligible to
apply for suspension of deportation on the basis that the fraudulent
divorce document Onyeme submitted to the INS to support his adjust-
ment of status was not "testimony" and, therefore, Onyeme could not
be considered to have given "false testimony." See 8 U.S.C.
§ 1101(f)(6) (providing that no person shall be considered of good
moral character who "has given false testimony for the purpose of
obtaining any benefits" under the INA). Upon reconsideration, the IJ
determined that Onyeme's conduct in giving false oral testimony to
an INS examiner on June 27, 1990, when he admittedly told the
examiner that all previous marriages had been terminated and submit-
ted a fraudulent divorce certificate, fell within the conduct described
in § 101(f)(6), 8 U.S.C. § 1101(f)(6), and precluded a finding of good
moral character. The IJ stated that whether Onyeme had actually been
married in Nigeria or, alternatively, whether he had never been mar-
ried and was, therefore, free to marry Kristin Jacobsen, was irrelevant
to his decision. Instead, the crucial fact was that Onyeme had falsely
informed the INS examiner, in the course of a sworn interview, that
his prior marriage had been terminated and that he did so for the pur-
pose of acquiring a benefit under the INA, because it was this conduct
that precluded a finding of good moral character. The IJ then con-
cluded that since the fraudulent statement occurred less than five
years before, Onyeme was not entitled to either suspension of depor-
tation or voluntary departure. The IJ, therefore, ordered Onyeme
deported.
Onyeme appealed the IJ's decision to the BIA. Specifically,
Onyeme argued before the BIA that the IJ erred in denying his motion
for continuance. Onyeme argued that the IJ's deportation order should
be vacated and the case remanded to the IJ in light of his pending
appeal of the denial of his visa petition and the unresolved issue of
the validity of the Nigerian court decree Onyeme had obtained to
prove that he had never been married in Nigeria.
On July 28, 1995, Onyeme and Jacobsen remarried on the strength
of the Nigerian court decree establishing that any record of a previous
marriage of Onyeme's in Nigeria had been expunged. On August 8,
1995, Jacobsen filed a third immigrant visa petition and a second
waiver of excludability application, on Onyeme's behalf, citing the
6
July 1995 remarriage as the basis for her petition. The BIA subse-
quently dismissed her appeal of the denial of her second visa petition
and initial application for a waiver of excludability, filed on
Onyeme's behalf.
On August 6, 1996, the BIA dismissed Onyeme's appeal of the IJ's
deportation order. The BIA rejected Onyeme's request that the case
be remanded to the IJ for adjudication of his visa petition, stating that
immigration judges have no jurisdiction to decide visa petitions. The
BIA also found that Onyeme was statutorily ineligible for adjustment
of status because Onyeme's admitted fraud in testifying before an INS
official rendered him excludable under § 212(a)(6)(C) of the INA, 8
U.S.C. § 1182(a)(6)(C), and, therefore, inadmissible to the United
States without a waiver of excludability issued at the discretion of the
Attorney General. The BIA also rejected Onyeme's argument that the
IJ erred when it denied his motion for a continuance, stating that
Onyeme had not established good cause for a continuance "because
an alien is not entitled to have his or her deportation delayed until a
pending visa petition is adjudicated." (A.R. 5). The BIA then dis-
missed Onyeme's appeal.
Onyeme now seeks review of the BIA's decision, arguing that the
BIA erred in upholding the IJ's denial of his motion for continuance
of the deportation proceedings for resolution of Jacobsen's second
visa petition filed on Onyeme's behalf and in declining to remand the
matter for a continuance pending resolution of Jacobsen's third visa
petition filed on Onyeme's behalf; permitting the INS to argue that
Onyeme's marriage to Jacobsen was not legal, despite an IJ's decision
in previous rescission proceedings that Onyeme's marriage to Jacob-
sen was legal; and upholding the deportation order where the INS
failed to conduct a prompt investigation of the validity of the Nigerian
court decree stating that Onyeme was not married in Nigeria.
II.
Whether to grant a motion to continue deportation proceedings is
within the sound discretion of the IJ and is reviewed for abuse of dis-
cretion only. See Hassan v. INS, 110 F.3d 490, 492 (7th Cir. 1997);
see also Bull v. INS, 790 F.2d 869, 871 (11th Cir. 1986) (holding
denial of continuance to be an abuse of discretion). Accordingly,
7
when reviewing the BIA's decision upholding the IJ's discretionary
action, "we . . . uphold the BIA's decision `unless it was made with-
out a rational explanation, it inexplicably departed from established
policies, or it rested on an impermissible basis, e.g., invidious dis-
crimination against a particular race or group.'" Hassan, 110 F.3d at
492 (quoting Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir.
1993)).
A.
Onyeme first argues that the BIA committed reversible error when
it upheld the IJ's denial of his motion to continue his deportation pro-
ceedings pending the resolution of Jacobsen's second immigrant visa
petition filed on Onyeme's behalf. Under INS regulations, an IJ may
grant a motion for a continuance in a deportation proceeding upon an
alien's showing of "good cause." See 8 C.F.R. § 3.29 (1997).
In order to evaluate whether the IJ abused its discretion in denying
Onyeme's motion for a continuance, it is first necessary to understand
the significance of the visa petition to Onyeme's quest to obtain per-
manent residency. We begin, then, with a brief explanation of the
steps an alien such as Onyeme must take, in the absence of deporta-
tion proceedings, to have his status adjusted to that of permanent resi-
dent.
First, because Onyeme is relying on his status as spouse of a
United States citizen, Onyeme's spouse, Jacobsen, must successfully
petition for an immediate relative immigrant visa on Onyeme's behalf
under 8 U.S.C. § 1153(a)(2). Second, either simultaneously or subse-
quently, Onyeme must apply for adjustment of his non-immigrant sta-
tus under § 245(a) of the INA, codified at 8 U.S.C. § 1255(a). In order
to establish that he is entitled to an adjustment of status, Onyeme
must show: (1) that he has applied for an adjustment of status; (2) that
he is eligible to receive an immigrant visa and is admissible to the
United States; and (3) that an immigrant visa was immediately avail-
able to him at the time his application was filed. See 8 U.S.C.
§ 1255(a).
With respect to the requirement that he be admissible to the United
States, § 212 of the INA, codified at 8 U.S.C.§ 1182, contains classes
8
of aliens ineligible for visas or admission because of, for example,
health-related reasons or criminal convictions. Pertinent to this peti-
tion is § 212(a)(6)(C)(i) of the INA, which includes in the class of
aliens ineligible for admission "[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure . . . a visa, other doc-
umentation, or admission into the United States or other benefit pro-
vided under [the INA]." 8 U.S.C. § 1182(a)(6)(C)(i).
If Onyeme is inadmissible because he is a member of a class of
aliens who are ineligible for visas or admission, his only option is to
seek a "waiver of excludability." Depending on the grounds of inad-
missibility, he can apply for a "waiver of excludability" based on his
status as the spouse of a United States citizen. For example, § 212(i)
of the INA provides that the Attorney General may, in her discretion,
waive the application of the subsection excluding from admission any
alien who willfully misrepresents a material fact for purposes of
obtaining benefits under the INA, if: (1) the immigrant is the spouse,
son, or daughter of a United States citizen or of an alien lawfully
admitted for permanent residence; and (2) it is established to the satis-
faction of the Attorney General that the refusal of admission to the
United States would result in extreme hardship to the citizen or law-
fully resident spouse or parent of such an alien. See 8 U.S.C.
§ 1182(i).
Thus, the third obstacle Onyeme must negotiate, after obtaining an
immigrant visa and applying for a status adjustment, is to obtain a dis-
cretionary waiver of excludability from the Attorney General. Once
Onyeme has obtained an immigrant visa and a waiver of excludabil-
ity, his application for adjustment of status is prima facie approvable.
In this case, Onyeme was at the first step of this process when he
requested a continuance of his deportation hearing pending the resolu-
tion of Jacobsen's second visa petition filed on his behalf. For several
reasons, we do not believe that the BIA erred in holding that the IJ
did not abuse his discretion in denying Onyeme's request. First, at the
time Onyeme sought the continuance, he had not applied for an
adjustment of status. Second, because of his fraudulent conduct in tes-
tifying falsely to an INS official, Onyeme was statutorily ineligible
for admission under § 212(a)(6)(C)(i) of the INA, and therefore, even
if Onyeme had applied for a status adjustment, he could not show that
9
he met the requirement of being admissible into the United States.
Third, the only way for Onyeme to obtain a status adjustment, not-
withstanding his statutory ineligibility, was to obtain a waiver of
excludability from the Attorney General. As discussed above, this
relief is wholly discretionary, and there is no reason to believe that the
Attorney General was so likely to grant this request that the IJ's
refusal to continue deportation proceedings against Onyeme consti-
tuted an abuse of discretion. Finally, at the time Onyeme sought the
continuance, Jacobsen's visa petition had been denied by the District
Director, and only her appeal of that denial to the BIA was unre-
solved. Given Onyeme's statutory ineligibility for admission into the
United States and the numerous contingencies that had to occur
before Onyeme would obtain the relief he sought (but for which he
had not yet even applied), we cannot say that the IJ abused its discre-
tion in denying Onyeme's request for a continuance of the deportation
proceedings.
In arguing that the BIA erred in upholding the IJ's denial of
Onyeme's request for a continuance, Onyeme relies principally on the
BIA's 1978 decision in In re: Garcia, 16 I. & N. Dec. 653 (BIA
1978), modified by In re: Arthur, 20 I. & N. Dec. 475 (BIA 1992),
which created an exception to the general rule that deportation pro-
ceedings need not be continued for resolution of a pending visa appli-
cation. In Garcia, the BIA held that an alien is generally entitled to
have deportation proceedings continued or reopened, following an
order of deportation, where there is currently pending an immigrant
visa petition, filed on the alien's behalf, along with an adjustment of
status application, where the visa petition and status adjustment appli-
cation are "prima facie approvable."6 See id. at 657; seealso Hassan,
_________________________________________________________________
6 In response to certain amendments to the INA in 1986 and 1990
aimed at discouraging fraudulent marriages for immigration purposes,
Garcia was modified in 1992 by the BIA's decision in Arthur. See In re:
Arthur, 20 I. & N. Dec. at 479. Under this modification, Garcia's pre-
sumption in favor of a continuance or reopening of deportation proceed-
ings for consideration of applications for adjustment of status based upon
pending visa petitions does not apply to visa petitions based on marriages
that were entered into following the commencement of deportation pro-
ceedings against them. See id. In this case, the petition that was pending
at the time that the IJ denied Onyeme's motion for continuance was the
10
110 F.3d at 492. The BIA emphasized in Garcia , however, that it did
not intend to establish an inflexible rule, stating:
It clearly would not be an abuse of discretion for the [IJ] to
summarily deny a request for a continuance or a motion to
reopen upon his determination that the visa petition is frivo-
lous or that the adjustment application would be denied on
statutory grounds or in the exercise of discretion notwith-
standing the approval of the [visa] petition.
Garcia, 16 I. & N. Dec. at 657.
Although Garcia created an exception to the general rule that
deportation proceedings need not be continued for resolution of a
pending visa application, we do not believe that the IJ abused its dis-
cretion in declining to continue Onyeme's deportation proceedings,
notwithstanding the presumption announced in Garcia. First, as set
forth above, Garcia did not create an inflexible rule, requiring an IJ
to continue deportation proceedings, regardless of the merits of the
pending visa petition. Rather, under Garcia, the IJ retains the discre-
tion to deny a request for a continuance where the adjustment of sta-
tus application would be denied on statutory grounds. See id.; see also
Hassan, 110 F.3d at 493 (holding that continuance of deportation pro-
ceedings was not merited where alien had been convicted of a crime
of moral turpitude such that his visa petition and adjustment of status
application were not prima facie approvable); Oluyemi v. INS, 902
F.2d 1032, 1033-34 (1st Cir. 1990) (holding no abuse of discretion
where IJ denied alien's request for continuance because alien had no
immigrant visa available and it was unlikely Attorney General would
exercise discretion to permit excludable alien to stay). Unlike this
case, Garcia involved an alien who, with the exception of having an
immediately available visa, appeared to meet all of the requirements
for a status adjustment. In particular, the alien in Garcia had not
_________________________________________________________________
second petition, which was based on the 1989 marriage between Onyeme
and Jacobsen, prior to the institution of deportation proceedings against
him. Therefore, Arthur's modification of Garcia does not apply to
Onyeme's claim that the IJ erred in denying his motion to continue based
on the pendency of the second visa application.
11
engaged in any conduct which made him statutorily inadmissible to
the United States. By contrast, Onyeme has admitted that he willfully
misrepresented to the United States Consul in Nigeria that he was
married in Nigeria in order to obtain a visitor's visa. In addition, he
admitted that he gave a sworn statement to an INS examiner in June
1990 that he had terminated his previous marriage in Nigeria and that
he did so in order to obtain an immigrant visa. This conduct makes
Onyeme statutorily ineligible for admission into the United States
under § 212(a)(6)(C) of the INA and, therefore, distinguishes this case
from Garcia. See 8 U.S.C. § 1182(a)(6)(C) (providing that any alien
who, by fraud or willful misrepresentation of a material fact, seeks to
procure a visa or other benefit under the INA is inadmissible).
In addition, even if a continuance had been granted and Onyeme
had successfully obtained an immigrant visa, he had not filed the req-
uisite application for adjustment of status, and ultimately, he was inel-
igible for a status adjustment in the absence of the Attorney General's
exercise of her discretion to waive his excludability. Thus, unlike in
Garcia, there was no prima facie approvable visa petition pending at
the time the IJ denied Onyeme's request for a continuance, and even
if there had been, Onyeme was not entitled to a status adjustment
since he had not applied for a status adjustment and because, without
discretionary relief granted by the Attorney General, he was ineligible
for a status adjustment. Under these circumstances, the BIA did not
err in upholding the IJ's denial of Onyeme's request for a continuance
of the deportation proceedings pending resolution of the second visa
petition filed on his behalf.
B.
Onyeme also asserts that the BIA erred in declining to remand this
matter to the IJ for a continuance pending resolution of the third visa
petition filed on his behalf.7 This visa petition, based on the second
_________________________________________________________________
7 In his brief, Onyeme does not specifically argue that the BIA erred
when it declined to remand his case to the IJ. However, Onyeme relies
heavily on the pendency of the third visa petition, and because this visa
petition was not filed until after the IJ entered his order of deportation
against Onyeme, his assertions with respect to the third visa petition
make sense only if he is contesting the BIA's failure to remand the case
pending resolution of that petition.
12
marriage between Jacobsen and Onyeme that took place on July 28,
1995, was filed on August 8, 1995, after the IJ's June 26, 1995 depor-
tation order but before the BIA ruled on Onyeme's appeal from that
order. We review the BIA's decision on a motion to remand, filed
during the pendency of an appeal, under the same legal standard as
a motion to reopen deportation proceedings, after a deportation order
becomes final. See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1531 n.3
(9th Cir. 1996). With respect to a motion to reopen, the Supreme
Court has held that there are three independent grounds on which the
BIA may deny an alien's motion to reopen deportation proceedings:
(1) the alien has not established a prima facie case for the underlying
substantive relief sought; (2) the alien has not introduced previously
unavailable, material evidence; and (3) where relief is discretionary,
the alien would not be entitled to the discretionary grant of relief. See
INS v. Abudu, 485 U.S. 94, 104-05 (1988). The BIA is accorded broad
discretion in ruling on a motion to reopen, and we reverse only for
an abuse of discretion. See id. at 96.
As set forth above, at the time Onyeme sought remand from the
BIA, he had not applied for, and was statutorily ineligible for, the ulti-
mate relief he sought--an adjustment of his status. Because he had
not established a prima facie case for an adjustment of status, the BIA
did not abuse its discretion in declining to remand this case for a con-
tinuance pending resolution of the third visa petition filed on
Onyeme's behalf.
III.
In addition to arguing that his deportation proceedings should have
been continued pending resolution of the second and third visa peti-
tions filed on his behalf, Onyeme raises two additional issues in his
petition, each of which merits little discussion. First, Onyeme argues
that the BIA erred when it permitted the INS to argue, during his
deportation proceedings, that his marriage to Jacobsen was invalid,
when an IJ during earlier proceedings concerning the rescission of
Onyeme's permanent resident status had concluded that Onyeme's
marriage to Jacobsen was legally valid, thereby establishing the "law
of the case." See Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66,
68-69 (4th Cir. 1988) (discussing the law of the case doctrine).
Onyeme's argument fails, however, because the IJ in the rescission
13
proceedings never actually decided whether Onyeme's marriage to
Jacobsen was valid. Instead, the IJ rescinded Onyeme's permanent
resident status on the basis that having admitted that he made a willful
false representation to the United States Consul in Nigeria in order to
obtain entry into the United States, Onyeme was not eligible to have
his status adjusted to that of legal immigrant. Because the IJ during
the rescission hearings never actually found that Onyeme was validly
married to Jacobsen, such a finding cannot be the"law of the case,"
and the BIA did not err in permitting the INS subsequently to contest
the validity of Onyeme's marriage to Jacobsen.
Second, Onyeme argues that he was denied fundamental fairness
and procedural due process of law in violation of the United States
Constitution because of the INS's failure to authenticate the Nigerian
court decree attesting to his lack of marriage in Nigeria prior to
Onyeme's deportation hearing in June 1995. See Rose v. Woolwine,
344 F.2d 993, 995-96 (4th Cir. 1965) (stating that the denial of a
meaningful opportunity to present evidence in response to allegations
affecting alien's deportability "casts grave doubt on the constitutional
adequacy of the deportation proceedings"). Although the INS stated
in July 1994, during the master calendar hearing, its intention to have
the document authenticated before Onyeme's deportation hearing,
there is no evidence that the INS delayed authentication unnecessar-
ily. In addition, each of the decisions adverse to Onyeme in this case
was made on the basis of his false statements either to the United
States Consul in Nigeria or the INS examiner in the United States.
The validity or invalidity of Onyeme's marriage to Jacobsen was not
the basis of the decision to deport him. Accordingly, even assuming
Onyeme possessed a protected liberty or property interest sufficient
to implicate his fundamental right to procedural due process, he was
not denied procedural due process by the delay in INS's authentica-
tion of the Nigerian court decree.
IV.
In sum, each of the grounds asserted by Onyeme in support of his
petition for review is meritless. Accordingly, we deny Onyeme's peti-
tion for review of the BIA's final order of deportation against him.8
_________________________________________________________________
8 At the time of oral argument, two motions filed by Onyeme remained
pending in this case. In the first motion, Onyeme requested this court to
14
PETITION DENIED
_________________________________________________________________
take judicial notice of the District Director's decision, on January 17,
1997, to grant the third visa petition filed on Onyeme's behalf. Because
our review of final orders of deportation issued by the BIA is limited to
matters contained in the administrative record, we deny Onyeme's
motion to take judicial notice. See 8 U.S.C.§ 1105a(a)(4) (now repealed
by the IIRIRA).
In the second motion, Onyeme sought leave to file a memorandum in
response to supplemental authority provided to the court by the INS pur-
suant to Local Rule 28(j); an order remanding the matter to the BIA and
directing the BIA to reopen Onyeme's deportation proceedings; and an
order staying Onyeme's deportation. Because the INS merely cited sup-
plemental authority under Local Rule 28(j) and did not brief the signifi-
cance of that authority to the facts of this case and because the other
relief sought by Onyeme is the subject of his petition for review, we deny
this motion as well.
15