United States Court of Appeals
For the First Circuit
No. 05-2426
AKIN ONIKOYI,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez and Howard, Circuit Judges,
and Hug,* Senior Circuit Judge.
Lidia M. Sanchez, Stephanie Dyson and Dyson Law, P.C., on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, James E. Grimes,
Senior Litigation Counsel, and Erica B. Miles, Attorney, U.S. Dept.
of Justice, Office of Immigration Litigation, on brief for
respondent.
June 16, 2006
*
Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Akin Onikoyi has petitioned for
review of the decision of the Board of Immigration Appeals denying
his applications for adjustment of status and waiver of
inadmissibility. He has also filed a motion for a stay of his
voluntary departure period. We conclude that we have no
jurisdiction to consider the merits of Onikoyi's petition for
review, given the discretionary nature of the underlying decisions
of the Immigration Judge and the Board of Immigration Appeals. We
also deny his motion for a stay of his voluntary departure period.
We reject his argument that we have the authority to reinstate the
voluntary departure period after the expiration of the initial
voluntary departure period.
I.
Onikoyi is a citizen of Nigeria who first entered the
United States with his wife in 1981 and overstayed his visa. He
was deported under an alias in 1986 and later illegally reentered
the United States. Onikoyi then applied for adjustment of status
under the government's amnesty program. He did not inform the
Immigration and Naturalization Service ("INS")1 that he had
previously been deported, which would have signaled that he was
ineligible for adjustment of status. On December 14, 1990, the INS
1
On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred
to the Department of Homeland Security ("DHS"), pursuant to §§ 441
and 471 of the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135.
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adjusted Onikoyi's status to that of a lawful permanent resident.
In 1993, Onikoyi was arrested for theft. The arrest
alerted the INS that he had previously been deported under an
alias. He was charged and convicted of illegal reentry. In 1994,
the INS issued an Order to Show Cause charging him with
deportability based on the conviction and his illegal status.
While the deportation proceedings were pending, Onikoyi's
wife became a citizen. She filed a I-130 spousal petition on his
behalf so that he could seek adjustment of status. During his
deportation hearing, Onikoyi applied for adjustment of status,
discretionary waiver of inadmissibility, and, in the alternative,
voluntary departure. In 2004, the Immigration Judge ("IJ") denied
his applications for adjustment of status and waiver of
inadmissibility as a matter of discretion, emphasizing that Onikoyi
had deceived government officials on several occasions and that the
equities were not in his favor. The IJ granted voluntary
departure.
Onikoyi appealed the IJ's decision to the Board of
Immigration Appeals ("BIA"). On August 25, 2005, the BIA adopted
and affirmed the IJ's decision. Onikoyi filed a petition for
review and a motion for a stay of deportation on September 23,
2005. The motion for a stay of deportation was denied. On
September 29, 2005, he filed a renewed motion for a stay of
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deportation and, for the first time, a motion for a stay of his
voluntary departure period.
II.
A. Jurisdiction
We begin by addressing the statutory provisions governing
our jurisdiction in this case. When Onikoyi's proceedings
commenced in 1994, judicial review was governed by former § 106(a)
of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1105a(a)
(1994). During the pendency of Onikoyi's proceedings, however,
Congress enacted two laws affecting our jurisdiction over claims
raised in immigration petitions. In 1996, Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA"), repealing INA § 106(a). IIRIRA, Pub. L. No. 104-208,
§ 306(b), 110 Stat. 3009. In deportation proceedings commenced
prior to IIRIRA's effective date, April 1, 1997, IIRIRA applied
"transitional rules," which also narrowed the scope of judicial
review. See IIRIRA § 309(c); Ruckbi v. INS, 159 F.3d 18, 20-21
(1st Cir. 1998) (describing transitional rules cases). Because
Onikoyi's proceedings commenced in 1994, the transitional rules
applied to his case. See Ruckbi, 159 F.3d at 21.
However, in 2005, Congress enacted the REAL ID Act, Pub.
L. No. 109-13, 119 Stat. 231. Section 106(d) of the REAL ID Act
states:
A petition for review filed under former
section 106(a) of the Immigration and
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Nationality Act (as in effect before its
repeal by section 306(b) of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 . . . ) shall be
treated as if it had been filed as a petition
for review under section 242 of the
Immigration and Nationality Act (8 U.S.C.
1252), as amended by this section.
Thus, under the REAL ID Act, transitional rules cases are now
subject to the jurisdictional rules currently codified in 8 U.S.C.
§ 1252. See Elia v. Gonzales, 431 F.3d 268, 272-73 (6th Cir.
2005), cert. denied, 126 S. Ct. 2019 (2006). We proceed on that
basis.
B. Onikoyi's Claims
Onikoyi raises two issues on appeal. First, he
challenges the denials of his applications for adjustment of status
and waiver of inadmissibility. Second, he seeks a stay of his
voluntary departure period. We address each issue in turn. "Where
the BIA deferred to or adopted the IJ's reasons for denying [the
petitioner's] claims, we review those portions of the IJ's decision
as part of the final decision of the BIA." Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004) (citation omitted).
1. Adjustment of Status and Waiver of Inadmissibility
We do not have jurisdiction to review the discretionary
denial of adjustment of status or waiver of inadmissibility. 8
U.S.C. § 1252(a)(2)(B)(i) (stating that "no court shall have
jurisdiction to review . . . any judgment regarding the granting of
relief under [INA's provisions regarding discretionary waiver of
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inadmissibility and adjustment of status]"). We do have
jurisdiction to review whether an applicant is statutorily
ineligible for discretionary relief, see Singh v. Gonzales, 413
F.3d 156, 160 & n.4 (1st Cir. 2005), and other "constitutional
claims or questions of law raised upon a petition for review," 8
U.S.C. § 1252(a)(2)(D).
Onikoyi attempts to cast the arguments in his petition
for review as questions of law, rather than challenges to the IJ's
discretionary determinations in his case. He argues that the IJ
found him statutorily ineligible for discretionary relief and that
she "erred as a matter of law" by denying him a waiver of
inadmissibility, determining that he had not demonstrated extreme
hardship to his citizen spouse and children and finding no other
favorable equities in his case.
Onikoyi mischaracterizes the IJ's opinion. The IJ made
clear, for each form of discretionary relief she was denying, that
her decision was based on her exercise of discretion. The IJ did
not conclude that Onikoyi was statutorily ineligible for a waiver
of inadmissibility or adjustment of status. Instead, the IJ
weighed the equities and explained that "[w]hen a person has the
type of criminal history that [Onikoyi] has and the tendency to lie
to authorities whenever possible, [relief] should not be granted to
him in the proper exercise of this [c]ourt's discretion." Although
the IJ considered Onikoyi's arguments regarding family hardship,
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the IJ concluded that Onikoyi "continued to defraud the United
States, and I haven't heard any excuse . . . . [A]ccordingly,
respondent's application for adjustment of status, the [] waiver,
and permission to return to the United States after being
previously deported are all hereby denied." The BIA adopted and
affirmed the IJ's decision to deny his applications for relief "as
a matter of discretion." Thus, we do not have jurisdiction to
review the BIA's affirmance of the discretionary decision of the IJ
in this case.
2. Voluntary Departure
In its August 25, 2005 decision, the BIA granted Onikoyi
thirty days to voluntarily depart following the issuance of its
order. Onikoyi did not depart during this time period. He filed
a timely petition for review, but did not request a stay of his
voluntary departure period until September 29, 2005, after the
expiration of his voluntary departure period.
In cases commenced on or after April 1, 1997, the
effective date of the enactment of the IIRIRA, we may suspend a
voluntary departure period only if the petitioner moves for the
suspension before the expiration of the initial voluntary departure
period. See Bocova v. Gonzales, 412 F.3d 257, 268 (1st Cir. 2005).
This requirement was formulated in response to IIRIRA's amendments
to the voluntary departure statute and the elimination of judicial
review of voluntary departure decisions. Id. As we explained,
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The IIRIRA materially changed the ground rules
for voluntary departure by stripping the
courts of appeals of jurisdiction to review
BIA decisions as to whether to grant voluntary
departure and, if so, for how long.
. . . .
[Post-IIRIRA,] an expired voluntary departure
period cannot be resuscitated retroactively.
After the period has elapsed, there is nothing
to suspend and any court order purporting to
toll an expired period of voluntary departure
would have the effect of creating a new
voluntary departure period. Under the IIRIRA,
that is impermissible.
Id. at 265, 268. (citations omitted). We further held that the
petitioner "must ask explicitly for a stay of voluntary departure;
a motion that prays only for a stay of removal will not suffice."
Id. at 268.
Onikoyi did not seek to stay or suspend his voluntary
departure period until after the period had expired. Thus, in a
post-IIRIRA world, where judicial review over voluntary departure
periods is eliminated, we would have no power to suspend or
reinstate his voluntary departure period. However, in a motion
filed after the briefs were submitted in this case, Onikoyi argues
that we may still consider his request because his deportation
proceedings were commenced prior to the effective date of IIRIRA.
Thus, he argues that the pre-IIRIRA voluntary departure statute2
2
Along with its restrictions on judicial review and other changes,
IIRIRA amended the voluntary departure statute through several new
provisions, including a limitation on the length of time during
which a person may be permitted to depart voluntarily at the
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and the IIRIRA's transitional rules apply. Under those standards,
we had jurisdiction to review voluntary departure decisions and
could reinstate a period of voluntary departure if the petitioner's
appeal "was neither obviously meritless nor apparently interposed
solely for purposes of delay" and "the government does not suggest
. . . any other reason for refusing the reinstatement." Umanzor-
Alvarado v. INS, 896 F.2d 14, 16 (1st Cir. 1990) (emphasis
omitted). Onikoyi argues that he is entitled to an extension or
reinstatement of his voluntary departure period under the pre-
IIRIRA standards.
However, as we discussed above, the REAL ID Act ensures
that the restrictions on judicial review currently codified in 8
U.S.C. § 1252 apply to transitional rules cases. See Elia, 431
F.3d at 272-73. Among those restrictions is the elimination of our
jurisdiction to review voluntary departure determinations. 8
U.S.C. § 1252(a)(2)(B)(i). Thus, the logic of Bocova applies here.
See Bocova, 412 F.3d at 266-68. Without jurisdiction to review
voluntary departure determinations, "we no longer have the
authority . . . either to fashion a new voluntary departure period
conclusion of his or her removal proceedings. See 8 U.S.C. §
1229c(b)(2)("Permission to depart voluntarily under this subsection
shall not be valid for a period exceeding 60 days."); see also 8
C.F.R. § 1240.26(f). IIRIRA also increased the penalties for
failing to depart voluntarily within the specified period. See 8
U.S.C. § 1229c(d)(1) (imposing a ten-year bar to certain forms of
relief from removal and a civil penalty ranging from $ 1,000 to $
5,000).
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or to reinstate an expired one." Id. at 266. We therefore deny
Onikoyi's motion to stay his expired voluntary departure period.
III.
The petition for review and the motion to stay the
petitioner's voluntary departure period are denied.
So ordered.
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