Onwuamaegbu v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1181

BENSON EZIAMAKA ONWUAMAEGBU,

Petitioner,

v.

ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lipez, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

Joseph L. Grimaldi and Law Offices of Joseph L. Grimaldi,
P.C., on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Stephen J.
Flynn, Senior Litigation Counsel, and Anh-Thu P. Mai, Attorney, on
brief for respondent.

December 6, 2006
 CYR, Senior Circuit Judge. Benson Eziamaka Onwuamaegbu

appeals from the Board of Immigration Appeals’ (BIA) denial of his

motion to reconsider its summary affirmance of an immigration

judge’s decision, which refused to waive inadmissibility pursuant

either to § 212(h) or (i) of the Immigration and Nationality Act

(INA). See INA § 212(h), (i), 8 U.S.C. § 1182(h), (i). We vacate

the denial, and remand to the BIA for written clarification of its

grounds for summary affirmance.

I

BACKGROUND

Onwuamaegbu, a native and citizen of Nigeria, came to the

United States in the early 1980s on a temporary student visa.

During 1986, he (i) married a lawful permanent resident (LPR); (ii)

was convicted of larceny by check in Massachusetts and received a

suspended six-month sentence; and (iii) applied for adjustment to

LPR status based on his recent marriage to an LPR. In his

application, however, Onwuamaegbu falsely responded “no” to the

question: “Have you ever, in or outside the United States, been

arrested, cited, charged, indicted, convicted, fined, or imprisoned

for breaking or violating any law or ordinance, including traffic

violations?” In 1988, Onwuamaegbu was convicted on two occasions

for forgery in New Hampshire, and again received suspended

sentences. Nevertheless, Onwuamaegbu was granted unconditional LPR

status in 1989.

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 At some point prior to March 14, 2000, Onwuamaegbu took

a trip of unknown duration to Nigeria. Upon returning to the

United States, he was charged with inadmissibility by the

Immigration and Naturalization Service (INS), based on his three

prior convictions for crimes of moral turpitude (viz., larceny by

check and forgery), INA § 212(a)(2)(A)(i)(I), 8 U.S.C. §

1182(a)(2)(A)(i)(I), and for his willful misrepresentation

regarding his Massachusetts conviction in his 1986 application for

adjustment of status, INA § 212(a)(6)(C)(i), 8 U.S.C. §

1182(a)(6)(C)(i). Onwuamaegbu conceded removability, but contended

that his deportation would result in “extreme hardship” to his

family, and requested waivers of inadmissibility pursuant to INA §

212(h) and (i).

Following a hearing, the immigration judge (IJ) found

Onwuamaegbu removable under INA § 212(a)(2)(A)(i)(I) or §

212(a)(6)(C)(i). Although the IJ determined that Onwuamaegbu’s

family would suffer extreme hardship if he were to be deported, she

denied his request for a § 212(h) and (i) waiver due to the fact

that he had previously been admitted as an LPR, but had not accrued

the requisite seven years of continuous lawful residence in the

United States. Onwuamaegbu appealed the IJ’s decision to the BIA,

contending that the IJ had erred in denying him a § 212(h) or (i)

waiver, given that: (i) Onwuamaegbu had achieved LPR status in

1989; (ii) the fact that he achieved that status by fraudulent

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means was not relevant to his entitlement to a § 212(h) waiver;

(iii) he therefore had lived lawfully and continuously in the

United States from 1989 to 2000 (viz., more than the requisite

seven years); and (iv) his brief trip to Nigeria could not – as a

matter of law – have retolled the seven-year continuous residence

requirement. In September 2004, the BIA summarily affirmed the

IJ’s decision. Onwuamaegbu did not petition for review of that

denial, electing instead to file a timely motion to reconsider the

BIA's denial of his appeal. The BIA denied the motion for

reconsideration, and Onwuamaegbu filed a timely petition for

review.

II

DISCUSSION

A. Standard of Review

As Onwuamaegbu filed no petition for review from the

BIA’s September 2004 denial of his appeal from the IJ’s decision,

and that denial became final after 30 days,1 we lack jurisdiction

to review it. See 8 U.S.C. § 1252(b)(1); Zhang v. INS, 348 F.3d

289, 292 (1st Cir. 2003) (noting that “[the] need to timely appeal

is a strict jurisdictional requirement”). Rather, Onwuamaegbu

submitted a timely petition for review from only the BIA’s January

1
The filing of the motion to reconsider did not toll the 30-
day period within which Onwuamaegbu was permitted to seek review of
the BIA’s denial of his appeal. See Ven v. Ashcroft, 386 F.3d 357,
359-60 (1st Cir. 2004) (citing Stone v. INS, 514 U.S. 386, 405-06
(1995)).

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2005 denial of his motion for reconsideration of the September 2004

BIA decision. See 8 C.F.R. § 1003.2(b). Although we have

jurisdiction to review this BIA decision, see Nascimento v. INS,

274 F.3d 26, 28 (1st Cir. 2001), our standard of review is more

circumscribed than it otherwise would have been had Onwuamaegbu

petitioned for review from the BIA’s denial of his appeal. We

review the denial of a motion to reconsider only for abuse of

discretion. See Zhang, 348 F.3d at 293; see also Esenwah v.

Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004) (noting that abuse-of-

discretion review of the BIA’s denial of a motion for

reconsideration is “considerably more deferential than the ordinary

administrative-law standard that governs our review of agency

decisions”), cert. denied, 544 U.S. 962 (2005). In order to

surmount this higher standard of review, Onwuamaegbu must

demonstrate that the BIA’s denial was “made without a ‘rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis’ (such as race).” Zhang, 348 F.3d

at 293 (citation omitted).

Although we normally review BIA decisions, and not IJ

decisions, we directly review the IJ’s decision in this case

because the BIA summarily affirmed it. See Stroni v. Gonzales, 454

F.3d 82, 86-87 (1st Cir. 2006).

B. Removability Pursuant to INA § 212(a)(2)(A)(i)(I) &
212(a)(6)(C)(i)

First, Onwuamaegbu asserts that the IJ erred in ruling

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that he was removable due to his previous conviction for a crime of

moral turpitude (viz., the May 1986 Massachusetts conviction for

larceny by check), INA § 212(a)(2)(A)(i)(I),2 and that he had

conceded that he was removable for failing to disclose that

conviction in his September 1986 application for lawful permanent

resident status, see INA § 212(a)(6)(C)(i), 8 U.S.C. §

1182(a)(6)(C)(i).3 Onwuamaegbu points out that, at the time of

that conviction, the INA excepted convictions for a “petty

offense,” see INA § 212(a)(9), 8 U.S.C. § 1182(a)(9) (repealed),

and argues that his state conviction meets this criterion given

that larceny by check is classified and/or punishable as a

“misdemeanor” under Massachusetts law, see Mass. Gen. Laws Ann. ch.

274, § 1. He further contends that his failure to disclose this

“misdemeanor” conviction on his 1986 LPR application was therefore,

by definition, not “material,” hence not an additional ground for

2
Subsection 212(a)(2)(A)(i)(I) provides: “[A]ny alien
convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of – a
crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime . . .
is inadmissible.” INA § 212(a)(2)(A)(i)(I), 8 U.S.C. §
1182(a)(2)(A)(i)(I). Larceny is generally considered a crime of
moral turpitude. See, e.g., Lawrence v. Gonzales, 446 F.3d 221,
226-67 (1st Cir. 2006).
3
Subsection 212(a)(6)(C)(i)provides: “Any alien who, by fraud
or willfully misrepresenting a material fact, seeks to procure (or
has sought to procure or has procured) a visa, other documentation,
or admission into the United States or other benefit provided under
this chapter is inadmissible.” INA § 212(a)(6)(C)(i), 8 U.S.C. §
1182(a)(6)(C)(i).

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removability under § 212(a)(6)(C)(i).

We need not address these questions, however, as

Onwuamaegbu failed to raise them before the BIA, either by appeal

from the IJ’s decision, or in his motion for reconsideration.

Instead, he simply challenged the IJ’s decision to deny him a

waiver of inadmissibility under INA § 212(h) and (i), see infra.

Arguments not raised on appeal to the BIA are deemed waived, for

failure to exhaust administrative remedies. See Susanto v.

Gonzales, 439 F.3d 57, 61 (1st Cir. 2006).

C. The Section 212(h) Waiver of Inadmissibility

Next, Onwuamaegbu challenges the IJ’s determination that

he was ineligible for a discretionary waiver of inadmissibility

under INA § 212(h), which provides in pertinent part:

The Attorney General may, in his discretion,
waive [inadmissibility] . . .

[1](B) in the case of an immigrant who is the
spouse, parent, son, or daughter of a citizen
of the United States or an alien lawfully
admitted for permanent residence if it is
established to the satisfaction of the
Attorney General that the alien's denial of
admission would result in extreme hardship to
the United States citizen or lawfully resident
spouse, parent, son, or daughter of such alien
. . . .

[2] No waiver shall be granted under this
subsection in the case of an alien who has
previously been admitted to the United States
as an alien lawfully admitted for permanent
residence if . . . the alien has not lawfully
resided continuously in the United States for
a period of not less than 7 years immediately
preceding the date of initiation of

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 proceedings to remove the alien from the
United States.

INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B) (emphasis added).

Hence, subsection 1 invests the Attorney General with the

discretion to grant a waiver to an immigrant who demonstrates that

his deportation will result in familial hardship, whereas

subsection 2 defines several subcategories of immigrants who are

per se ineligible for this waiver even if they can establish

“extreme hardship”.

The IJ found that Onwuamaegbu satisfied the “extreme

hardship” criterion of § 212(h)(1)(B), but went on to deny the

waiver because Onwuamaegbu (i) was an immigrant “previously . . .

admitted” for lawful permanent residence, and (ii) had “not

lawfully resided continuously in the United States for a period of

not less than seven years.” The IJ noted that the BIA had

interpreted the unambiguous phrase “previously . . . admitted” to

refer to any immigrant who had in fact obtained LPR status,

regardless of whether he had done so by lawful or unlawful means.

See In re Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998). Thus, the IJ

noted that Onwuamaegbu’s admission as an LPR in 1987, even if he

obtained that status by making a material misrepresentation in his

application, satisfied the “previously . . . admitted” criterion of

§ 212(h), and Onwuamaegbu was therefore “bound” by the requirement

that he must have lawfully resided continuously in the United

States for at least seven years. The IJ noted that Onwuamaegbu was

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a “returning alien” in March 2000, and therefore did not satisfy

the seven-year requirement.

In the petition for review, Onwuamaegbu maintains that

the IJ’s decision is erroneous, as a matter of law, in that it used

March 2000 as the measuring point for the “seven year” period,

whereas the IJ should have inquired whether Onwuamaegbu had

continuously resided in the United States from March 1993 to March

2000. The answer, Onwuamaegbu suggests, is plainly "yes." He

contends that the BIA abused its discretion in denying his

reconsideration motion because Ayala, the sole basis for the IJ’s

decision, does not provide a definition of the critical phrase

“lawfully resided continuously”. Furthermore, Onwuamaegbu posits

that the IJ could not have determined that his trip abroad had

tolled his period of continuous United States residence without

first determining the circumstances and duration of the trip, which

she unquestionably did not do.

1. Ayala and the “Previously Admitted” Factor

Section 212(h) embodies two distinct concepts: (i)

previous admission "as an alien lawfully admitted for permanent

residence,” and (ii) continuous lawful residence. (Emphasis

added.) The Ayala case notes that the former concept is a

threshold criterion, in that it defines the class of aliens who are

required to satisfy the latter “lawful residence” criterion, which

is contained in a pendant “if” clause. See Ayala, 22 I. & N. Dec.

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at 401. Once an immigrant has been admitted as an LPR, he may

obtain a waiver only if he meets the seven-year rule. If an

immigrant has never before been admitted as an LPR (viz., if he is

an illegal alien), he is not disqualified from obtaining a § 212(h)

waiver, whether or not he has lawfully resided continuously in the

United States for seven years.

Although it may seem incongruous that Congress accorded

such preferential treatment to a non-LPR immigrant over one who has

already achieved LPR status, the courts uniformly have upheld this

statutory distinction against equal protection challenges. See,

e.g., De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 640 (3d Cir.

2002); Lukowski v. INS, 279 F.3d 644, 647-48 (8th Cir. 2002); Lara-

Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001). The purported

“rational basis” for the distinction made by Congress is that LPR

immigrants have enjoyed the benefits and advantages that attend

their “lawful” status, and should they engage in unlawful acts

while remaining LPRs, they should be subject to harsher

consequences than a non-LPR immigrant. See De Leon-Reynoso, 293

F.3d at 639-40. That is precisely the import of Ayala: even an

immigrant who has obtained LPR status by unlawful means goes on to

enjoy the same special benefits of LPR status as one who obtained

it by lawful means. By using the term “previously admitted,”

rather than (for example) “previously and lawfully admitted,”

Congress demonstrated that it specifically intended to penalize

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those immigrants who sought and gained LPR status only to abuse its

benefits.

Thus, based on the extant BIA precedent, the IJ

rationally concluded, as a threshold matter, that Onwuamaegbu was

an immigrant “previously . . . admitted . . . as an alien lawfully

admitted for permanent residence,” even though he had fraudulently

misrepresented a material fact in his 1986 LPR application, and the

IJ determined that Onwuamaegbu therefore was “bound,” by subsection

212(h), to satisfy the seven-year rule. See Ayala, 22 I. & N. Dec.

at 401 (“We are not persuaded by the respondent’s argument that we

should read his proposed distinction into the law by focusing on

the term ‘lawfully admitted’ and disregarding the entire phrase

that provides the context for that term, namely ‘previously been

admitted’ to the United States as an alien lawfully admitted for

permanent residence.”); cf. In re Koloamatangi, 23 I. & N. Dec.

548, 551 (BIA 2003) (defining, for purposes of cancellation of

removal under INA § 240A(a), the phrase “lawfully admitted for

permanent residence” to exclude admissions acquired by fraudulent

means, but expressly distinguishing Ayala because of § 212(h)’s

differing choice of language); cf. also Savoury v. U.S. Attorney

Gen., 449 F.3d 1307, 1315 (11th Cir. 2006) (observing same

distinction between Ayala and Koloamatangi); Obioha v. Gonzales,

431 F.3d 400, 409 n.10 (4th Cir. 2005) (same). In a word, then,

like Ayala, Onwuamaegbu was not a non-LPR, viz., an illegal alien

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entitled to escape the strictures of the seven-year test.

2. The Lawful Continuous Residence Factor

After resolving this threshold eligibility question under

Ayala, however, the IJ still was required to determine whether

Onwuamaegbu had “lawfully resided continuously in the United States

for a period of not less than seven years immediately preceding the

date of initiation of proceedings to remove the alien from the

United States.” (Emphasis added.) Ayala, which dealt exclusively

with the threshold term “‘previously been admitted’ to the United

States as an alien lawfully admitted for permanent residence,” did

not reach the issue of the seven-year test’s distinct concept of

lawful and continuous residence.

With respect to the latter requirement, the IJ set forth

a very terse holding, which provides in toto:

Because the respondent was admitted to the
United States on March 14, 2000 as a returning
LPR, he has not lawfully resided continuously
in the United States for seven years,
rendering him ineligible for a waiver under §
212(h) of the Act. As such, he remains
removable under § 212(a)(2)(A)(i)(I) of the
Act.

Respondent argues that we should assume from this statement that

the IJ denied the § 212(h) waiver because she determined that

Onwuamaegbu had obtained his LPR status in 1989 by fraudulent

means, and therefore his requisite period of seven-years “lawful”

residence under § 212(h) never commenced in 1989.

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 The problem with the IJ’s concise holding, however, is

that it fails to pinpoint with sufficient clarity the IJ’s precise

rationale, and because the BIA summarily affirmed the IJ’s

decision, leaves us without an adequate basis for deciding whether

the BIA abused its discretion in denying Onwuamaegbu’s

reconsideration. See 8 C.F.R. § 1003.1(e)(4) (noting that the

BIA’s summary affirmance connotes only the BIA’s agreement with the

result reached by the IJ, rather than the IJ’s specific rationale).

We explain.

The IJ’s bare reference to the term “returning alien”

seems to direct us implicitly to INA § 1101(a)(13), which governs

the status of LPRs returning to the United States from a trip

abroad. As a returning LPR, Onwuamaegbu presumptively would not

have been regarded as an applicant for admission (viz., would not

have been placed in deportation proceedings), unless he fell under

one of six exceptions:

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States
for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after
having departed the United States,

(iv) has departed from the United States while
under legal process seeking removal of the
alien from the United States, including
removal proceedings under this chapter and
extradition proceedings,

(v) has committed an offense identified in
section 1182(a)(2) of this title, unless since

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 such offense the alien has been granted relief
under section 1182(h) or 1229b(a) of this
title, or

(vi) is attempting to enter at a time or place
other than as designated by immigration
officers or has not been admitted to the
United States after inspection and
authorization by an immigration officer.

INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C). The IJ did not

specify which exception she relied on in determining Onwuamaegbu

inadmissible. Because Onwuamaegbu left the United States in 2000

to travel to Nigeria, he was a “returning alien” presumptively

entitled to readmission, but his circumstances – viz., his trip

abroad and his prior conviction for crimes of moral turpitude –

potentially barred his readmission as an LPR under exceptions (i),

(ii), and/or (v) to subsection 101(a)(13).

As we have noted, however, see supra Section II.C.1,

Ayala was the only case discussed at length by the IJ. Although

the IJ correctly determined that Onwuamaegbu was required to

establish seven-years' residence under § 212(h) to obtain a waiver,

Ayala did not reach the issue of the lawful-and-continuous-

residence requirement, and does not constitute a valid ground for

denying Onwuamaegbu a § 212(h) waiver.4 At the present juncture,

we cannot determine whether or not the IJ rested the § 212(h)

denial entirely on Ayala, and by extension, whether or not the BIA

4
In fact, on appeal before the BIA, the respondent argued that
the IJ had incorrectly relied on Ayala as a basis for measuring the
seven-year residency requirement.

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accordingly interpreted the IJ’s holding, thereby abusing its

discretion.

Moreover, Onwuamaegbu plausibly contends that it is

impossible for us to determine with sufficient certainty the

rationale underlying the IJ’s laconic holding as to the § 212(h)

“lawful” and “continuous” residency requirement, and that for all

we know she may have rested her decision – for example – solely on

the interruption in Onwuamaegbu's “continuous” United States

residency occasioned by his Nigerian trip in 2000. The IJ simply

noted that Onwuamaegbu “has not lawfully resided continuously in

the United States for seven years,” without specifying whether the

fatal defect consisted of a lack of lawfulness, continuity, or

both. Moreover, by adverting to the date March 14, 2000, the IJ

invited an inference that Onwuamaegbu’s Nigerian trip somehow may

have retolled his seven-year residency period, setting the clock

back to zero. If the IJ did rely on the Nigerian trip’s

interruption of Onwuamaegbu’s seven-year residency period (from

March 1993 to March 2000), such a finding is not supported by

“substantial evidence” in the record, since no evidence was adduced

at the hearing concerning the duration of Onwuamaegbu’s trip to

Nigeria, let alone any evidence that his trip had lasted more than

the 180 days prescribed by § 1101(a)(13)(ii). Once again, it would

have been an abuse of discretion had the BIA so interpreted the

IJ’s holding, and affirmed on that ground.

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 Given these alternative interpretations of the IJ’s ratio

decidendi, the efficacy of the respondent’s contention that the IJ

must have denied the § 212(h) waiver pursuant to exception (v) of

INA § 101(a)(13)(C) because the IJ determined that Onwuamaegbu had

obtained his LPR status in 1989 by fraudulent means and that his

“residence” for purposes of § 212(h) was “unlawful” ab initio, can

hardly be deemed incontestable. Were that the intended rationale,

one reasonably could expect some mention of the date of the

inception of Onwuamaegbu’s unconditional LPR status in 1989, and

not March 14, 2000, as the date of primary significance. Although

the hearing transcript reveals that the IJ explored the “ab initio”

theory with the parties, there is no such definitive ore tenus

holding. Had the IJ ultimately decided to rely on the ab initio

theory, moreover, one reasonably would expect some statement in her

written opinion that this was the conceptual basis for denying the

§ 212(h) waiver. Once again we are left with a double-layered

ambiguity: what was the basis for the IJ’s decision, and what

inferences did the BIA draw regarding the basis for the IJ’s

decision?

Moreover, it is not at all obvious that the IJ would have

relied on the “ab initio” principle as constituting settled and

clear-cut law. In support of that principle, respondent cites

cases which distantly predate the 1996 enactment of § 212(h), and

which plainly turn upon the appropriate interpretation of the

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distinct term “lawful admission,” rather than “lawful residence.”

See, e.g., Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir.

1983); cf. In re Koloamatangi, 23 I. & N. Dec. at 550-51 (defining,

for purposes of cancellation of removal under INA § 240A(a), the

phrase “lawfully admitted for permanent residence” to exclude

admissions acquired by fraudulent means). The terms “admission”

and “residence” plainly are not incontestably coterminous. No

extant court or BIA decision has interpreted the term “lawfully” in

§ 212(h), and the statute itself affords no definition. See Yepez-

Razo v. Gonzales, 445 F.3d 1216, 1219 n.6 (9th Cir. 2006).5

Onwuamaegbu was “lawfully” admitted, per Ayala, and it is at least

arguable that, as a “lawful permanent resident,” he “resided”

lawfully in the United States for the requisite seven years.

In any event, since the BIA summarily affirmed the IJ, it

never set forth its own rationale for affirming the IJ’s denial of

the § 212(h) waiver. See Zhang, 348 F.3d at 293 (noting that the

5
As the agency administering the INA, respondent (acting
through the BIA) would be first in line to interpret this undefined
statutory term, at which point the courts would accord Chevron
deference to the BIA's interpretation, provided it were a
permissible one. See Yepez-Razo, 445 F.3d at 1219 n.6 (noting that
the court would need to defer to BIA’s interpretation of undefined
phrase “lawfully resided continuously” in § 212(h)). Normally,
Chevron deference is to be accorded only to statutory
interpretations by the BIA, however, not to IJ interpretations.
See, e.g., Lin v. United States Dep’t of Justice, 416 F.3d 184,
189-191 (2d Cir. 2005). The BIA summarily affirmed, which simply
connotes the BIA’s agreement with the result reached by the IJ,
rather than its specific rationale. See id. at 190 (citing 8
C.F.R. § 1003.1(e)(4)).

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BIA abuses its discretion if its denial is “made without a

‘rational explanation’”) (citation omitted). The BIA’s “[f]ailure

to explain a decision adequately provides a ground for reversal. .

. . [since] cursory, summary or conclusory statements from the

Board leave us to presume nothing other than an abuse of

discretion.” Zhao v. United States Dep’t of Justice, 265 F.3d 83,

97 (2d Cir. 2001) (citation omitted). Moreover, the BIA may have

affirmed on some other ground not apparent to us. Yet, it is

extremely problematic for appeals courts to assess an exercise of

the BIA’s discretion absent a reasonably clear signal as to the

precise rationale for its exercise of discretion.

Finally, the equities in the present case are especially

troublesome, and the personal stakes for Onwuamaegbu ought not be

determined on the basis of mere supposition. Onwuamaegbu

admittedly passed bad checks, then concealed his criminal

convictions at the time he obtained an "adjustment of status" in

1989. On the other hand, he has since resided in the United States

for nearly twenty years without further criminal behavior, and has

a spouse and children. Moreover, the IJ found that his deportation

would result in extreme hardship to Onwuamaegbu's family. In these

extraordinary circumstances, it is essential that the case be

remanded to the BIA, with instructions to issue a written

clarification of the grounds for its affirmance of the IJ’s denial

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of a § 212(h) waiver.6

III

CONCLUSION

Onwuamaegbu has waived any challenge to the IJ’s

determination that he was in fact subject to removal under §

212(a)(6)(C)(i). See supra Section II.B. As we cannot determine

with sufficient certainty the basis for the BIA’s denial of

Onwuamaegbu’s motion for reconsideration, however, we vacate the

denial and remand the case to the BIA for its issuance, in due

course, of a written clarification of its rationale for accepting

the IJ’s denial of the § 212(h) waiver application.

We hereby grant the petition for review of the BIA’s
denial of the motion for reconsideration, and remand the case to
the BIA for an order of clarification consistent with the opinion
herein. SO ORDERED.

6
At this juncture, we need not address Onwuamaegbu’s argument
that he was entitled to a § 212(i) waiver as well, which prescribes
relief for some aliens who are excludable for willful
misrepresentation of a material fact, and who establish extreme
hardship. INA § 212(i), 8 U.S.C. § 1182(i). Even if he were to
qualify for a § 212(i) waiver, Onwuamaegbu is independently
removable under § 212(a)(2)(A)(i)(I) due to his conviction of a
crime of moral turpitude. The latter ground for removability
cannot be waived under § 212(i).

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