Arinze v. Ashcroft ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60352
Summary Calendar
SYLVESTER OSITA ARINZE,
Petitioner,
versus
JOHN ASHCROFT, U.S. Attorney General,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A28-583-393
October 23, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Sylvester Osita Arinze, a citizen of Nigeria, seeks review of
a final order of deportation issued by the Board of Immigration
Appeals. He contends: the BIA erred in requiring proof of
cohabitation in determining whether Arinze entered into a
qualifying marriage in good faith, see 8 U.S.C. § 1186a(c)(4)(B);
the BIA erred in interpreting that section and in failing to
consider his poverty as a relevant factor; and the BIA erred in
concluding that deportation would not result in extreme hardship
*
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this opinion should not be published and is not precedent except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.
when it denied Arinze’s petition for suspension of deportation
pursuant to 8 U.S.C. § 1254(a)(1) (repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 §
308(a)(7), 110 Stat. 3009-615).
I.
Arinze entered the United States in November 1983 as a non-
immigrant visitor; and, although his visa authorized him to stay in
the United States until 20 May 1984, he remained to attend school
and work. Arinze married Cassandra Sayles, a United States
citizen, in 1987. Arinze and Sayles divorced in January 1990.
On 21 February 1990, Arinze and Sherry Drew were married.
Based on this marriage, Arinze was granted conditional lawful
permanent resident status on 19 March 1991.
On 28 April 1991, Arinze threatened Drew and assaulted her
with a deadly weapon. Arinze was charged with felony aggravated
assault, pleaded nolo contendre, was sentenced to five years
probation, and was directed to have no contact with Drew during his
probation. Arinze petitioned for dissolution of the marriage, and
a final divorce decree was issued on 16 September 1991.
In an application dated 5 January 1993, Arinze petitioned for
removal of the conditional basis of his permanent resident status,
applying for a hardship waiver because his marriage to Drew ended
in divorce. See 8 U.S.C. § 1186a(c)(4)(B). On 8 December 1994,
the Immigration and Naturalization Service informed Arinze it
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intended to deny his petition for hardship waiver, concluding “a
lawful and cohabitational marriage did not exist” between Arinze
and Drew. On 10 January 1995, the INS received Arinze’s overdue
response to the notice of intent to deny; and the INS denied
Arinze’s petition for hardship waiver because Arinze failed to
submit sufficient proof of cohabitation and a bona fide spousal
relationship. Accordingly, on 11 January 1995, INS terminated his
conditional lawful permanent resident status.
Deportation proceedings were commenced, and Arinze petitioned
for a hardship waiver under 8 U.S.C. § 1186a(c)(4)(B) and applied
for suspension of deportation under former section 244 of the
Immigration and Nationality Act, 8 U.S.C. § 1254 (1994). Arinze
submitted his divorce decree, affidavits, telephone and utility
bills, a month-to-month lease running from May until July 1990, an
expired health insurance policy, and a furniture receipt. After
several hearings, the Immigration Judge, on 13 October 1995, found
that Arinze had not met his burden of demonstrating that the
qualifying marriage was entered into in good faith. In an order
dated 6 March 1996, the Immigration Judge denied Arinze’s request
for suspension of deportation because deportation would not result
in extreme hardship to him or his United States citizen daughter.
(Arinze married a citizen of Great Britain, who entered the United
States in 1995. Arinze’s wife gave birth to their daughter on 12
November 1995.) On 26 March 2001, the BIA adopted and affirmed the
Immigration Judge’s decisions. It noted that Arinze lived in
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Nigeria until he was 23 and decided: the evidence failed to prove
cohabitation; Arinze had not shown that he could not find
employment in Nigeria; and Arinze failed to explain why his family
in Nigeria could not help him.
II.
Judicial review of a deportation order is limited. A final
order of deportation is reviewed on the administrative record upon
which the order is based, and the court will sustain an order that
is supported by “reasonable, substantial, and probative evidence”.
Carbajal-Gonzalez v. I.N.S., 78 F.3d. 194, 197 (5th Cir. 1996)
(quoting 8 U.S.C. § 1151a(a)(4) (1994)), cert. denied, 510 U.S. 995(1993). The substantial evidence standard “requires only that the
Board’s conclusion ... be substantially reasonable.” Animashaun v.
I.N.S., 990 F.2d 234, 237 (5th Cir. 1993). Because a hardship
waiver is only available at the discretion of the Attorney General,
our review is limited further to whether there has been an abuse of
that discretion. See Nyonzele v. I.N.S., 83 F.3d 975, 979 (5th
Cir. 1996) (statutory grant of discretion for hardship waivers,
asylum requests, and voluntary departure requests requires abuse of
discretion standard); see also I.N.S. v. Yang, 519 U.S. 26, 30
(1996) (interpreting similar language of 8 U.S.C. § 1251(a)(1)(H)).
To be eligible for a hardship waiver, Arinze must demonstrate
that the “qualifying marriage was entered into in good faith”. 8
U.S.C. § 1186a(c)(4)(B). For this determination, the INS
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considers: the commingling of assets, 8 C.F.R. § 216.5(e)(2)(i);
the length of cohabitation after marriage and after the alien
obtained conditional resident status; other evidence, 8 C.F.R. §
216.5(e)(2)(ii); and the conduct of the parties before and after
the marriage, see Matter of Soriano, 19 I. & N. Dec. 764 (1988).
Other evidence of their intent may be demonstrated, for example, by
listing a spouse on insurance policies, leases, income tax forms,
or bank accounts and by testimony about courtship, the wedding, or
shared residences or experiences. See Matter of Laureano, 19 I. &
N. Dec. 1 (1983). Furthermore, it is the alien’s burden to provide
“competent objective evidence” in support of a claim of a bona fide
marriage. Matter of Ho, 19 I. & N. Dec. 582 (1988).
Based upon our review of the record, we conclude that the BIA
did not abuse its discretion in finding Arinze failed to meet his
burden to prove, by a preponderance of the evidence, that the
qualifying marriage to Drew was entered into in good faith.
Although Arinze asserts that the issue before the BIA was proof of
cohabitation and not whether the marriage was entered into in good
faith, the hardship waiver requires Arinze to prove the marriage
was entered into in good faith, a component of which is proof of
cohabitation. See 8 U.S.C. § 1186a(c)(4)(B) & 8 C.F.R. §
216.5(e)(2)(ii).
The evidence shows that the couple separated five weeks after
Arinze obtained conditional resident status and he filed for
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divorce less than three months later. Arinze did not testify, but
merely relied on several affidavits and evidence submitted to INS.
With respect to Arinze’s remaining contentions, section
309(c)(4)(E) of the Illegal Immigration Reform and Responsibility
Act bars judicial review of the BIA’s denial of Arinze’s
application for suspension of deportation under 8 U.S.C. § 1254.
Moosa v. I.N.S., 171 F.3d 994, 1013 (5th Cir. 1999). Arinze’s
interpretation of 8 U.S.C. § 1186a(c)(4)(B) is wrong, because the
“at fault” language in the statute has nothing to do with whether
Texas provides for “at fault divorces”. Instead, the statutory “at
fault” language references the time period in which the alien must
petition for termination of the conditional status. Finally,
Arinze fails to point to any decision holding that poverty is a
relevant factor to consider, and Arinze’s claim, raised for the
first time on appeal, regarding ineffective assistance of counsel
is not properly before the court because Arinze has failed to
exhaust his administrative remedies. See Goonsuwan v. Ashcroft,
252 F.3d 383, 387, 389 (5th Cir. 2001).
III.
For the foregoing reasons, the order of the Board of
Immigration Appeals is
AFFIRMED.
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