Mambu Koroma v. Eric Holder, Jr. ( 2010 )

Case: 09-60233 Document: 00511026735 Page: 1 Date Filed: 02/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2010
No. 09-60233
Summary Calendar Charles R. Fulbruge III
Clerk
MAMBU JUSU KOROMA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
On Petition for Review of an Order
Of the Board of Immigration Appeals
Agency No. 046-943-157
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mambu Jusu Koroma, a citizen of Sierra Leone, petitions for review of the
Board of Immigration Appeals’ (“BIA”) March 5, 2009 order, dismissing his
appeal of the Immigration Judge’s (“IJ”) June 7, 2006 decision denying Koroma’s
motion to terminate removal proceedings and ordering him removed. Because
the BIA’s decision, based on the evidence presented, was substantially
reasonable and within its discretion, we deny Koroma’s petition.
*
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not be published and is not precedent except under the limited circumstances set forth in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. 09-60233
I. FACTUAL AND PROCEDURAL BACKGROUND
Koroma entered the United States on an F11 visa as the unmarried son
of a United States citizen on April 24, 1999. In a subsequent petition for alien
relative, signed by Koroma on September 25, 2000, Koroma indicated he had
actually been married on February 21, 1999. On an application for
naturalization signed on October 18, 2004, Koroma indicated he had been
married on February 8, 1999, and subsequently divorced on March 2, 2004. The
Department of Homeland Security (“DHS”) issued a notice to appear and
commenced removal proceedings against Koroma in October 2005. The removal
proceedings were commenced on charges that Koroma’s visa was issued without
compliance with 8 U.S.C. § 1182(a)(7)(A)(i)(II)1 of the Immigration and
Nationality Act of 1952, as amended (“the Act”), and that Koroma had
misrepresented a material fact under 8 U.S.C. § 1182(a)(6)(B)2 of the Act.
The IJ held a merits hearing on June 7, 2006. During the hearing, the IJ
asked Koroma to explain the inconsistencies contained within the documentary
evidence; namely, the visa application on which he claimed to be unmarried; the
petition for alien relative on which he stated he had been married on February
21, 1999; and the naturalization application wherein he indicated he had been
married on February 8, 1999. In his live testimony at the hearing, Koroma
claimed he was married in a “traditional” ceremony held in Sierra Leone after
he had come to the United States, and the ceremony was held without his
presence, occurring sometime in March 2000. Koroma also submitted a letter
from the tribal headman who performed the marriage, in which the headman
1
The allegation is Koroma was inadmissible at the time of his application for
admission because his visa had been issued without compliance with provisions of 8 U.S.C.
§ 1153 (relating to the number of visas allocated to unmarried sons and daughters of
United States citizens).
2
In its brief, the Government indicates this citation was a typographical error; the
applicable section is 8 U.S.C. § 1182(a)(6)(C), pertaining to any alien who procures
admission into the United States by misrepresenting a material fact.
2
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No. 09-60233
attempted to explain that he had mistakenly used a February 1999 date on the
marriage certificate, and the certificate should have contained a March 2000
date to reflect when the marriage actually occurred. Koroma further testified
that he used the February 21, 1999 date on the petition for alien relative because
he “did not want to complicate things.”
The IJ denied Koroma’s requested relief, finding that Koroma was married
when he entered the United States on a visa reserved for unmarried children of
United States citizens, that Koroma failed to provide credible evidence or
credible testimony, and that Koroma was not of good moral character. The IJ
further found that Koroma was not eligible for voluntary departure, and ordered
that Koroma be removed to Sierra Leone. Koroma filed a timely appeal to the
BIA which dismissed Koroma’s administrative appeal of the IJ’s order on March
5, 2009. Koroma has petitioned us for review of the BIA’s dismissal.
II. ANALYSIS
In his petition, Koroma asks us to review the BIA’s March 5, 2009 order
dismissing his motion to terminate removal proceedings. The sole issue
presented to us by Koroma is whether the IJ violated Koroma’s due process rights
by ordering him removed without an opportunity to apply for relief from removal
as provided by the Act. The Government contends first that Koroma waived any
challenges to the IJ’s findings which were adopted and affirmed by the BIA, and
second, that Koroma’s due process challenge fails.
We have jurisdiction under 8 U.S.C. § 1252, to review legal and
constitutional issues related to the BIA’s final order of removal. We generally
have authority only to review the BIA’s decision. Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007) (citation omitted). However, when the BIA’s decision is
influenced by the IJ’s ruling, we may also examine the IJ’s ruling. Id. (citations
omitted). When the BIA affirms the IJ, relying on the IJ’s reasoning, we review
the IJ’s decision along with the BIA’s decision. Theodros v. Gonzales, 490 F.3d
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396, 400 (5th Cir. 2007). The BIA adopted and affirmed the IJ’s decision
regarding Koroma’s removability, relying on the IJ’s reasoning. Therefore, we
may review the BIA’s decision as well as the IJ’s ruling.
We review questions of law de novo, and review factual findings of the BIA
to determine if they are supported by substantial evidence in the record. Kane
v. Holder, 581 F.3d 231, 236 (5th Cir. 2009); Theodros, 490 F.3d at 400. “The
substantial evidence standard requires only that the [BIA’s] conclusion be based
upon the evidence presented and be substantially reasonable.” Kane, 581 F.3d
at 236 (alteration in original) (quotation omitted); see also Animashaun v. INS,
990 F.2d 234, 237 (5th Cir. 1993) (citation omitted) (same). Under the
substantial evidence standard, we will affirm the BIA’s decision unless the
evidence compels a contrary conclusion. Theodros, 490 F.3d at 400. The
petitioner bears the burden of showing that the “evidence was so compelling that
no reasonable factfinder could conclude against [him].” Id. (quoting Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996)).
Koroma argues that the IJ erred in not affording him the opportunity to
apply for relief from removal, thereby violating Koroma’s right to due process.
This argument is without merit. A due process challenge to a removal proceeding
requires a showing of substantial prejudice. Anwar v. INS, 116 F.3d 140, 144
(5th Cir. 1997) (citations omitted). For Koroma to show that the IJ’s denial of an
opportunity to apply for relief from removal caused him to sustain substantial
prejudice, Koroma must make a prima facie showing that he was eligible for
relief from removal. Id. As the IJ determined, and the BIA affirmed, Koroma
failed to present any evidence that he was eligible for any adjustment of status;
namely, Koroma presented no evidence that an I-130 petition previously filed on
his behalf had been approved or that he had a current visa. See 8 C.F.R.
§ 1245.10(b)(2). Additionally, the IJ had discretion to grant or deny such relief
to Koroma. See Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006). Because
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of such discretion, Koroma’s eligibility for relief is not protected by due process.
United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002).
The BIA specifically adopted and affirmed the findings of the IJ that
Koroma failed to provide credible testimony and evidence at his hearing. We give
great deference to the IJ’s findings regarding Koroma’s credibility. Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Where the IJ’s credibility
determination finds support in the record, that finding will be affirmed unless the
record compels a contrary conclusion. Mwembie v. Gonzales, 443 F.3d 405, 410
(5th Cir. 2006). The record does not compel us to a contrary conclusion. The IJ
found numerous inconsistencies between Koroma’s testimony and his
documentary evidence produced. Substantial evidence in the record supports the
finding that Koroma’s testimony and the factual assertions made in his various
applications for immigration benefits are inconsistent. The IJ additionally found
that Koroma made numerous misrepresentations on the documents submitted
into evidence and made further misrepresentations during his oral testimony.
Further, Koroma failed to provide any reasonable explanation for the numerous
inconsistencies. The BIA had substantial evidence to support its adoption and
affirmation of the IJ’s ruling. The record, taken as a whole, contains substantial
evidence to support the findings of the IJ and the BIA.
III. CONCLUSION
For the foregoing reasons, we deny Koroma’s petition to review the BIA’s
dismissal of Koroma’s appeal.
DENIED.
5