IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-60698
__________________________
OLUGBEMIGA BALOGUN,
Petitioner,
versus
JOHN D. ASHCROFT, U.S. Attorney General,
Respondent.
___________________________________________________
Petition for Review of an Order of
the Board of Immigration Appeals
___________________________________________________
October 31, 2001
Before GARWOOD and WIENER, Circuit Judges and FALLON,* District
Judge.
WIENER, Circuit Judge:
Petitioner Olegbemiga Balogun, a Nigerian citizen, applied for
protection under Article 3 of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (the “CAT”). The Board of Immigration Appeals (the
“Board”) affirmed the Immigration Judge’s (the “IJ”) dismissal of
Balogun’s application, and it is that affirmance by the Board that
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
Balogun now appeals. We conclude that we lack jurisdiction to hear
this petition for review, and therefore dismiss.
I. Facts and Proceedings
Balogun was born in Nigeria in 1963, and was educated in
Nigeria and England. In 1984, he was admitted to the United States
as a non-immigrant student and authorized to remain in this country
for as long as he maintained his status as a student. In 1990, he
was arrested and convicted for illegal possession of credit cards,
fraudulent use of credit cards, and forgery, under Alabama’s State
Criminal Code sections 13A-9-3 and 13A-9-14. He was sentenced to
five years’ imprisonment for these offenses. Later in 1990, an IJ
found Balogun deportable, the Board affirmed this finding, and we
affirmed this decision, stating, “[c]learly, forgery and fraudulent
use of credit cards...are crimes involving moral turpitude.”1
In the meantime, Balogun was also tried and convicted in 1991
under 42 U.S.C. § 408(g)(2) for illegally obtaining telephone
credit cards through the use of a false social security number.2
Balogun received a seven-month prison sentence for this offense.
In 1993, Balogun was deported from the United States. He
1
Balogun v. INS, 959 F.2d 967 (5th Cir. 1992)
(unpublished).
2
Subsection (g)(2) was redesignated (a)(7) by Pub.L. 101-
508, § 5121(b)(3), Nov. 5, 1990, 104 Stat. 1388-283. Title 42
U.S.C. § 408(a)(7) provides that a person who commits an offense
under the section “shall be guilty of a felony and upon
conviction thereof shall be fined under title 18, United States
Code, or imprisoned for not more than five years, or both.”
2
testifies that when he returned to Nigeria, he was immediately
taken by officials of the Nigerian military government and placed
in shackles in a small cell for a week, where he was fed only once
a day and beaten regularly. In 1994, he registered in the National
Democratic Coalition (NADECO), a group that opposed the military
government in power and sought restoration of democracy in Nigeria.
According to Balogun, Nigerian government officials subjected him
to beatings, threats, and persecution during the next several years
because of his involvement in NADECO activities. Balogun finally
fled Nigeria in 1996 and, using a false passport that he obtained
in Ghana, entered the United States for three months in 1997. He
then went to the Bahamas, where he overstayed his four-day tourist
visa. In 1998, Balogun returned to the United States so that
(according to his testimony) he could return to the Bahamas.
When he attempted to enter the United States in 1998, however,
Balogun was stopped by immigration officials and served with notice
to appear before the Immigration Court. He was charged with being
inadmissible to the United States as an alien who, by fraud or
willful misrepresentation of a material fact, seeks to obtain an
immigration benefit,3 and as an alien who, at the time of
application for admission, was not in possession of a valid entry
document.4 Balogun conceded inadmissibility at his immigration
3
Section 212(a)(6)(C)(i) of the Immigration and Nationality
Act, as amended (“INA”).
4
Section 212(a)(7)(A)(i)(I) of the INA.
3
hearing but applied for asylum. The IJ found that Balogun’s 1990
conviction for forgery constituted an “aggravated felony” under
section 101(a)(43)(R) of the INA, and that he was thus ineligible
for both asylum5 and withholding of removal.6 The IJ then adjourned
the proceedings so that Balogun could pursue protection under the
CAT.
Following a series of hearings on the merits of the CAT claim,
the IJ found Balogun ineligible for protection because he lacked
credibility. The IJ found further that, even if Balogun were
credible, substantial improvement of conditions had occurred in
Nigeria, his home country, so that Balogun had failed to meet his
burden of showing that he would be tortured if he were returned
there. In September 2000, the Board affirmed the IJ’s decisions
and dismissed the appeal. Balogun timely filed this petition for
review of the Board’s affirmance.
II. Analysis
A. Standard of Review
We review de novo our jurisdiction to hear this challenge of
the Board’s final order.7
B. Discussion
5
Pursuant to INA §§ 208(b)(2)(A)(ii) and 208(b)(2)(B)(i).
6
Pursuant to INA § 241(b)(3)(B)(ii).
7
Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001);
Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert.
denied, 531 U.S. 1069 (2001).
4
Balogun maintains that the Board employed incorrect legal
standards when it evaluated his credibility and the conditions of
his home country, and that the Board erred in dismissing his CAT
claim. Balogun insists his evidence established that the six
required elements of the claim had, more likely than not, been met.
As we conclude that we do not have jurisdiction to hear this
petition, we do not reach the merits of Balogun’s challenges.
Balogun applied for protection under the CAT, which is
incorporated into domestic law of the United States in the Foreign
Affairs Reform and Restructuring Act of 1998 (“FARRA”).8 Section
2242(d) of FARRA provides:
(d) Review and Construction. —— Notwithstanding any other
provision of law,...nothing in this section shall be
construed as providing any court jurisdiction to consider
or review claims raised under the Convention or this
section, or any other determination made with respect to
the application of the policy set forth in subsection
(a), except as part of the review of a final order of
removal pursuant to section 242 of the Immigration and
Nationality Act.9
8
Pub.L. No. 105-277, Div. G, Oct. 21, 1998, § 2242.
9
Id. This mandate is confirmed in the regulations
promulgated by the INS to implement the Convention Against
Torture:
(e) Judicial review of claims for protection from
removal under Article 3 of the Convention Against
Torture.
(1) Pursuant to the provisions of section 2242(d) of
the [FARRA], there shall be no judicial appeal or
review of any action, decision, or claim raised under
the Convention or that section, except as part of the
review of a final order of removal pursuant to section
242 of the [INA]; provided however, that any appeal or
5
Section 242 of the INA, to which the above-quoted excerpt refers,
is now found at 8 U.S.C. § 1252, and provides, in pertinent part:
(C) Orders against criminal aliens. Notwithstanding any
other provision of law, no court shall have jurisdiction
to review any final order of removal against an alien who
is removable by reason of having committed a criminal
offense covered in [8 U.S.C. § 1182(a)(2)]....10
Despite this denial of jurisdiction, we retain jurisdiction to
review jurisdictional facts.11 Specifically, to determine whether
we are precluded from reviewing this petition, we must inquire,
first, whether Balogun is an alien and then, if he is, whether he
is removable for having committed a crime covered by 8 U.S.C. §
1252(a)(2)(C). As no one disputes that Balogun is an alien, we
turn to the particular provisions of § 1252(a)(2)(C) and inquire
petition regarding an action, decision, or claim under
the Convention or under section 2242 of the [FARRA]
shall not be deemed to include or authorize the
consideration of any administrative order or decision,
or portion thereof, the appeal or review of which is
restricted or prohibited by the [INA].
8 C.F.R § 208.18(e)(1).
10
8 U.S.C. § 1252(a)(2)(C) (emphasis added). This
provision also strips courts of jurisdiction to review petitions
when the alien is deportable under certain subsections of 8
U.S.C. § 1227(a)(2)(A).
11
Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000),
cert. denied, 531 U.S. 1069 (2001) (citing Camancho-Marraquin v.
INS, 188 F.3d 649, 651 (5th Cir. 1999)). Courts also retain
jurisdiction to consider whether the jurisdiction-stripping
provisions of the statute are being constitutionally applied and
to consider any substantial constitutional claims. Nehme v. INS,
252 F.3d 415, 420 (5th Cir. 2001); Lara-Ruiz v. INS, 241 F.3d
934, 939 (7th Cir. 2001). Balogun raises no constitutional
challenges at all, so this alternative route to jurisdiction over
the case is not open to us.
6
whether Balogun is inadmissible pursuant to 8 U.S.C. § 1182(a)(2).
Under 8 U.S.C. § 1182(a)(2), only subsections (A) and (B) are
relevant in this case. Section 1182(a)(2)(A) provides that the
following aliens are inadmissible:
(A) Conviction of certain crimes. (i) ...[A]ny alien
convicted of...acts which constitute the essential
elements of ——
(I) a crime involving moral turpitude....
(ii) Exception. Clause (i)(I) shall not apply to an
alien who committed only one crime if ——
(I) the crime the crime was committed when the alien
was under 18 years of age,... or
(II) the maximum penalty possible for the crime...did
not exceed imprisonment for one year and, if the alien
was convicted.., the alien was not sentenced to a term
of imprisonment in excess of 6 months (regardless of
the extent to which the sentence was ultimately
executed).12
Section 1182(a)(2)(B), in turn, provides that the
following aliens are inadmissible:
(B) Multiple criminal convictions. Any alien convicted
of 2 or more offenses..., regardless of whether the
conviction was in a single trial or whether the offenses
arose from a single scheme of misconduct and regardless
of whether the offenses involved moral turpitude, for
which the aggregate sentences to confinement were 5 years
or more....13
To summarize, then, when the alien has been convicted of a crime
involving moral turpitude, or has been convicted of two or more
offenses for which the aggregate sentences to confinement were five
12
8 U.S.C. § 1182(a)(2)(A) (emphasis added).
13
Id. § 1182(a)(2)(B) (emphasis added).
7
years or more, 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction
to hear his petition for review.
The Alabama crimes for which Balogun was convicted are crimes
of moral turpitude. As noted above, we determined in 1992 that
these offenses were crimes of moral turpitude when we reviewed
Balogun’s deportation order based on those convictions.14 This
determination comports with the Supreme Court’s observation that
“fraud has consistently been regarded as such a contaminating
component in any crime that American courts have, without
exception, included such crimes within the scope of moral
turpitude.”15 It also comports with our own early conclusion that
“under the authorities[, forgery is] regarded as involving moral
turpitude.”16 Balogun is therefore inadmissible according to the
terms of 8 U.S.C. § 1182(a)(2)(A)(i)(I).17
Additionally, Balogun has multiple convictions for which the
14
See supra note 1 and accompanying text.
15
Jordan v. DeGeorge, 341 U.S. 223, 228 (1951).
16
United States ex rel. McKenzie v. Savoretti, 200 F.2d
546, 548 (5th Cir. 1952).
17
Neither of the exceptions to the applicability of §
1182(a)(2)(A)(i)(I) applies to Balogun. He was born in 1963,
entered the United States for the first time in 1984, and was
convicted for the Alabama offenses in 1990. He was therefore
over 18 years of age when the crime was committed, thus
preventing the application of the first exception. See 8 U.S.C.
§ 1182(a)(2)(A)(ii)(I). Second, he was sentenced to five years’
imprisonment for these convictions, preventing the application of
the exception for short-sentence offenses. See id. §
1182(a)(2)(A)(ii)(II).
8
aggregate sentences of confinement were for five years or more. As
we observed, he was convicted for offenses under the Alabama
criminal code and, in a later trial, under 42 U.S.C. § 408(g)(2).
For the Alabama convictions, Balogun received a five-year sentence,
and for the federal conviction, he received a seven-month sentence.
These facts make him inadmissible according to the terms of 8
U.S.C. § 1182(a)(2)(B).
Finally, 8 U.S.C. § 1252(a)(2)(C) provides that the alien need
only be “removable” under the cited sections to trigger the
jurisdictional bar. The subsections of 8 U.S.C. § 1182 that we
apply to Balogun today specify that he will be inadmissible, not
removable. Title 8 U.S.C. § 1229a(a)(2) fills this gap, however:
§ 1229a. Removal proceedings
(a) Proceedings...
(2) Charges. An alien placed in proceedings under this
section may be charged with any applicable ground of
inadmissibility under [8 U.S.C. § 1182(a)]....18
Put more succinctly, if an alien is inadmissible for having
committed offenses specified in § 1182(a), he is removable as well.
Moreover, as we emphasized in Lopez-Elias v. Reno19:
What the INS originally charged is of no consequence; so
long as the alien in fact is removable [under a section
cited in 8 U.S.C. § 1252(a)(2)(C)], this court has no
jurisdiction, irrespective of whether the INS originally
18
8 U.S.C. § 1229a(a)(2).
19
209 F.3d 788 (5th Cir. 2000), cert. denied, 531 U.S. 1069
(2001).
9
sought removal for that reason.20
It is therefore immaterial that Balogun was charged with
inadmissibility in 1998 under different sections of the INA.21 The
CAT limits our jurisdiction through the application of 8 U.S.C. §
1252(a)(2)(C). Applying that section, we conclude that Balogun, an
alien, is inadmissible (and therefore removable) on at least two
separate grounds. Our analysis —— and our jurisdiction —— ends
there, and this petition for review is accordingly
DISMISSED FOR LACK OF JURISDICTION.
20
Id. at 793. In Lopez-Elias we found the petitioner
removable pursuant to a different section cited in §
1252(a)(2)(C) —— that related to “aggravated felonies” —— but the
thrust of our pronouncement there holds true regardless of which
section cited in § 1252(a)(2)(C) renders the petitioner
“removable.”
21
See supra notes 3 and 4 and accompanying text.
10