Itoro Okon v. Eric Holder, Jr. ( 2011 )

Case: 10-60347 Document: 00511471855 Page: 1 Date Filed: 05/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 10, 2011
No. 10-60347
Summary Calendar Lyle W. Cayce
Clerk
ITORO EDET OKON,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A043 357 082
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Itoro Edet Okon, a native and citizen of Nigeria, petitions this
court for review of the Board of Immigration Appeals’s (BIA) decision dismissing
his appeal and affirming the finding by the Immigration Judge (IJ) that Okon
did not establish derivative citizenship and was removable after having been
convicted of a controlled substance offense and an aggravated felony. Okon
contends that the IJ erred in refusing to consider divorce documents from
Nigeria, even though the documents were not authenticated in accordance with
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60347
8 C.F.R. § 1287.6. He argues that the documents were proof of his claim for
derivative citizenship.
Okon’s nationality claim is a question of law that we review de novo.
Marquez-Marquez v. Gonzales, 455 F.3d 548, 554 (5th Cir. 2006). Deference is
given to the BIA’s interpretation of the Immigration and Nationality Act.
Heaven v. Gonzales, 473 F.3d 167, 171 (5th Cir. 2006). Section 1287.6 provides
a specific manner of authentication of foreign documents. It is undisputed that
Okon did not comply with the requirements of the regulation. We have held that
the BIA does not err in refusing to admit or consider foreign documents that are
not properly authenticated. Zhao v. Gonzales, 404 F.3d 295, 299-304 (5th Cir.
2005). Therefore, the IJ and BIA did not err in refusing to consider the
documents presented by Okon. There was no other evidence in the record to
support Okon’s claim of derivative citizenship. Moreover, there was evidence
that Okon’s parents were still married at the time of his mother’s naturalization.
Okon did not satisfy his burden of proof to establish citizenship. See
Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006).
Okon also contends that the IJ erred in finding that he had been convicted
of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(ii). He argues that the
finding precluded him from being eligible for cancellation of removal under 8
U.S.C. § 1229b. The respondent argues that we should not consider Okon’s
challenge to the aggravated felony finding because the BIA did not address the
argument, finding that Okon was removable on the separate ground that he had
been convicted of a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i).
Okon fails to challenge the determination that he was removable under
§ 1227(a)(2)(B)(i) for having been convicted of a controlled substance offense.
Thus, he has abandoned any challenge to this finding. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Nevertheless, the issue should be
addressed because Okon’s argues not only that he should not be removed on the
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No. 10-60347
basis of an aggravated felony conviction; he contends that the finding precluded
him from eligibility for cancellation of removal.
Okon’s challenge to the finding that he had been convicted of an
aggravated felony is without merit. The record shows that Okon was convicted
in 2008 of the Texas offense of possession of marijuana. See T EX. H EALTH
& S AFETY C ODE A NN. § 481.121(a), (b)(1). The offense was enhanced based on
his prior 2006 conviction for delivery of cocaine. See T EX. P ENAL C ODE A NN.
§ 12.43(b)(2). The documents show that Okon pleaded true to the enhancement.
Because his 2008 drug conviction was based on the fact of a prior conviction,
Okon’s offense qualifies as a drug trafficking offense under the Controlled
Substances Act. See 21 U.S.C. § 844(a); Carachuri-Rosendo v. Holder, 130 S. Ct.
2577, 2581 (2010). Therefore, the IJ did not err in finding that Okon was
removable after having been convicted of an aggravated felony and that he was
ineligible for cancellation of removal. See 8 U.S.C.§§ 1227(a)(2)(A)(iii), 1229b(a);
Carachuri-Rosendo, 130 S. Ct. at 2580, 2588-89.
Accordingly, Okon’s petition for review is DENIED.
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