Filed: October 4, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-2358
(A94-231-363)
Agwu Okpa, a/k/a Okpa Agwu Okpa,
Petitioner,
versus
U.S. Immigration & Naturalization Service,
Respondent.
O R D E R
The court grants the motion to publish and amends its opinion
filed August 28, 2001, as follows:
On the cover sheet, section 1 -- “UNPUBLISHED” is changed to
read “PUBLISHED.”
On the cover sheet, section 6 -- the status line is changed to
read “Petition for review dismissed in part and denied in part by
published per curiam opinion.”
On page 3, paragraph 1, line 5 -- the words “IRS officer” are
corrected to read “INS officer.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AGWU OKPA, a/k/a Okpa Agwu
Okpa,
Petitioner,
v. No. 97-2358
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A94-231-363)
Argued: June 7, 2001
Decided: August 28, 2001
Before WILKINSON, Chief Judge, and MICHAEL and
KING, Circuit Judges.
_________________________________________________________________
Petition for review dismissed in part and denied in part by pub-
lished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Taiwo A. Agbaje, AGBAJE & ASSOCIATES, P.A., Bal-
timore, Maryland, for Petitioner. Papu Sandhu, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart E. Schiffer, Acting Assistant Attor-
ney General, Allen W. Hausman, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
PER CURIAM:
Okpa Agwu Okpa petitions for review of the decision of the Board
of Immigration Appeals (BIA) denying him a waiver of inadmissibil-
ity under INA § 212(i), 8 U.S.C. § 1182(i)(1). Okpa claims that the
BIA erred in applying retroactively the version of § 212(i) as
amended by the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (IIRIRA). In the alternative, he argues that the BIA
abused its discretion in not granting him a waiver. The INS argues
that we lack jurisdiction over Okpa's claims. We hold that we have
jurisdiction to review Okpa's retroactivity claim, but not his abuse of
discretion claim. On the merits of the retroactivity claim, we hold that
the BIA did not err in applying amended § 212(i) to his claim.
I.
On February 16, 1990, Okpa, a native of Nigeria, entered the
United States on a nonimmigrant visitor's visa, which authorized him
to be in this country for two months. Okpa overstayed his visa and
remained here illegally. In February 1992 Jason Addo, who was affili-
ated with the Liberian embassy, approached Okpa with a crooked
scheme to remedy Okpa's unlawful status. Okpa paid Addo $2500 in
cash for his promise to help Okpa obtain Temporary Protective Status
(TPS) that would be based on a fraudulent application. TPS allows an
alien to remain in the United States legally, and this status may be
granted to an alien who is a national of a designated country that is
experiencing an ongoing armed conflict. See 8 U.S.C. § 1254a(b)
2
(1)(A). Liberia was in the middle of a civil war, and Okpa (following
Addo's advice) filed a TPS application falsely stating that he was a
citizen of Liberia. Addo in turn was to submit to the INS documenta-
tion from the Liberian embassy showing that Okpa was Liberian. At
a June 1992 interview with an INS officer concerning his TPS appli-
cation, Okpa initially stated that he was Liberian. However, when
pressed by the officer, Okpa recanted and admitted that he was from
Nigeria. The INS denied his TPS application because he failed to
establish Liberian citizenship.
In December 1992 the INS charged Okpa as deportable for over-
staying his visa. About two weeks later Okpa married Cynthia Sow-
ers, whom he had known for almost two years. The threat of
deportation prompted Okpa to apply for the discretionary relief of
adjustment of status under 8 U.S.C. § 1255(a), which allows the
Attorney General to change an alien's status to that of lawfully admit-
ted for permanent residence. Okpa, however, was inadmissible for
permanent residence because he had submitted a fraudulent TPS
application. See 8 U.S.C. § 1182(a)(6)(C)(i). To solve this problem
and put himself back on track to seek an adjustment of status under
§ 1255(a), Okpa sought a waiver of inadmissibility under § 212(i) of
the INA, 8 U.S.C. § 1182(i). Section 212(i) allows for a waiver when
the alien is inadmissible because he has filed a fraudulent document
with the INS. At the time Okpa sought a waiver of inadmissibility,
§ 212(i) permitted the Attorney General to grant a waiver "in the case
of an immigrant who is the spouse . . . of a United States citizen." The
main consideration in a § 212(i) waiver decision was whether the
alien's spouse would experience any hardship if the alien was
deported. See Matter of Da Silva, 17 I. & N. Dec. 288, 290 (1979).
An immigration judge held a hearing on Okpa's waiver of admissi-
bility. Okpa presented evidence of the potential hardship to his wife
if he was deported. His wife was a full-time student who earned about
$500 a month from part-time work. She testified that Okpa paid all
of the household bills and helped care for her two children from a pre-
vious marriage. A friend of Okpa's testified that Okpa and his wife
had a good marriage. At the conclusion of the hearing, the IJ denied
Okpa's waiver application. However, the IJ erroneously treated
Okpa's application as filed under § 212(h), not § 212(i). Section
212(h) allows for a waiver when the alien is inadmissible because of
3
certain criminal activity. See 8 U.S.C.§ 1182(h). A waiver may be
granted under § 212(h) only if there is a showing of "extreme hard-
ship" to the alien's spouse. Id. The IJ's error in applying § 212(h) was
significant. Okpa was seeking a waiver under § 212(i), which did not
require a showing of extreme hardship. Rather, § 212(i) only required
a showing of plain hardship to the alien's spouse. Indeed, several BIA
decisions had stressed the distinction between the standards of
§§ 212(i) and 212(h). See Matter of Alonzo, 17 I. & N. Dec. 292, 294
(1979) ("[C]ongress intended that different standards be applied to
[§§ 212(i) and 212(h)] with a more liberal standard to be applied to
§ 212(i), otherwise they would read the same.").
In applying the extreme hardship standard, the IJ noted that Okpa
and his wife were married right after the INS initiated the deportation
proceedings against Okpa. The IJ questioned whether the marriage
was one of convenience to "avoid[ ] the problems of immigration."
Ultimately, the IJ placed great weight on the fact that Okpa's wife did
not display any emotion over the prospect that he might be deported.
Because Okpa failed to establish that his deportation would result in
extreme hardship to his wife, the judge denied his application for
waiver of inadmissibility and, consequently, for adjustment of status.
Okpa appealed the IJ's decision to the BIA, arguing that the IJ
erroneously considered his waiver application under § 212(h), rather
than under § 212(i). While Okpa's appeal was pending with the BIA,
Congress amended § 212(i) to require a showing of extreme hardship.
See IIRIRA, Pub. L. No. 104-208, § 349, 110 Stat. 3009-546, 3009-
639 (codified as amended at 8 U.S.C. § 1182(i)). This meant that
§§ 212(i) and 212(h) now required the same showing of extreme
hardship. The BIA held that amended § 212(i) applied retroactively
to Okpa's case. As a result, Okpa had to show extreme hardship in
order to obtain a waiver of admissibility. The BIA affirmed the IJ's
denial of a waiver, holding that the IJ did not err in concluding that
Okpa's wife would not endure extreme hardship.
Okpa then filed a pro se "complaint" in federal district court, chal-
lenging the BIA's decision. Because direct review of the BIA's deci-
sions rests exclusively in the courts of appeals, the district court
transferred the case to us pursuant to 28 U.S.C.§ 1631. See 8 U.S.C.
4
§ 1105a(a) (repealed 1996).1
1 Okpa now argues that the BIA erred in
applying amended § 212(i) retroactively. In the alternative, he argues
that the BIA abused its discretion in failing to grant him a waiver.
II.
We turn first to the question of our jurisdiction. IIRIRA provides
two sets of rules governing immigration proceedings. See Lewis v.
INS, 194 F.3d 539, 542 n.4 (4th Cir. 1999). The transitional rules
apply to aliens who were involved in deportation proceedings initi-
ated prior to April 1, 1997, and were issued a final deportation order
more than thirty days after September 30, 1996. See § 309(c)(4), 119
Stat. at 3009-625. The permanent rules apply to all other aliens who
were involved in deportation proceedings on or after April 1, 1997.
See § 309(a), 119 Stat. at 3009-625. Okpa's case is governed by
IIRIRA's transitional rules.
Section 309(c)(4)(E) of the transitional rules provides that "there
shall be no appeal of any discretionary decision under . . . Section
212(i)." See 119 Stat. at 3009-626 (emphasis added). In other words,
we may review all aspects of the BIA's decision except those that are
committed to its discretion by law. See Gonzalez-Torres v. INS, 213
F.3d 899, 901 (5th Cir. 2000); Bernal-Vallejo v. INS, 195 F.3d 56, 59-
60 (1st Cir. 1999); Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997).2
2
Okpa claims that the BIA erred in applying amended § 212(i) retroac-
tively. We have jurisdiction to review this claim because the question
of whether a statute applies retroactively is not committed to the
BIA's discretion. See Cervantes-Gonzales v. INS, 244 F.3d 1001,
1005 (9th Cir. 2001) (exercising jurisdiction over the identical retro-
activity question presented in this case). However, we lack jurisdic-
tion to review Okpa's claim that the BIA abused its discretion in
_________________________________________________________________
1 IIRIRA repealed § 1105a. See § 306(b), 110 Stat. at 3009-612. Okpa,
however, is subject to IIRIRA's transitional rules, see infra part II, and
§ 1105a is still applicable under those rules. See § 309(c)(1)(B), 110 Stat.
at 3009-625 ("proceedings (including judicial review thereof) shall con-
tinue to be conducted without regard to [the] amendments").
2 By comparison, IIRIRA's permanent rules state that we may not
review "any judgment regarding the granting of relief under section
[212(i)]." 8 U.S.C. 1252(a)(2)(B)(i).
5
concluding that his wife would not endure extreme hardship. The
question of whether an alien can show extreme hardship is committed
to the Attorney General's discretion by statute. See 8 U.S.C. § 1182(i)
("The Attorney General may, in [his] discretion . . . [grant a waiver]
. . . if it is established to the satisfaction of the Attorney General that
the refusal of admission to the United States of such immigrant alien
would result in extreme hardship to the citizen or lawfully resident
spouse . . . ."); see also Cervantes-Gonzalez , 244 F.3d at 1106 (hold-
ing that court lacked jurisdiction to review whether the BIA erred in
concluding that the alien could not show extreme hardship). Because
the decision with respect to whether extreme hardship is established
is a discretionary one, we may not review Okpa's abuse of discretion
claim.
III.
The INS argues that even if we have jurisdiction over Okpa's retro-
activity claim, we should nonetheless decline to reach its merits.
According to the INS, the BIA's decision rested on two independent
grounds. Specifically, the INS claims that the BIA not only held that
Okpa could not show extreme hardship, but that the BIA denied Okpa
a waiver "in the ultimate exercise of its discretion." Resp't Supple-
mental Br. on Jurisdiction at 12. The INS argues that this second
ground is unreviewable. Accordingly, the INS claims that there is no
need to reach the merits of Okpa's retroactivity claim. However, we
read the BIA's decision as only resting on the ground that Okpa could
not show extreme hardship. The pertinent part of the BIA's decision
states:
The Immigration Judge denied the respondent's application
for a waiver of inadmissibility under section 212(h), in the
exercise of discretion. The Immigration Judge found no
showing of extreme or emotional hardship to the qualifying
relative (his wife) if the respondent is deported. The same
analysis applies under section 212(i), as amended. We also
find that the respondent failed to establish that discretion is
warranted under section 212(i). (citation omitted).
The INS reads the sentence beginning "We also . .." as stating that
regardless of whether Okpa can show extreme hardship, he is none-
6
theless not entitled to a waiver. Specifically, the INS claims that the
word "also" signals that the BIA was stating an alternative ground for
affirming the IJ's decision. However, this sentence read in context
merely serves as the conclusion to the BIA's extreme hardship analy-
sis. The BIA noted that the IJ had analyzed Okpa's claim under
§ 212(h). The BIA stated that the IJ had concluded that Okpa could
not show extreme hardship. Next, the BIA reasoned that the IJ's anal-
ysis was equally applicable to amended § 212(i). Finally, the BIA
concluded by agreeing with the IJ's findings: "We also find that the
respondent failed to establish that discretion is warranted under sec-
tion 212(i)." The word "also" does not signal an alternative holding.
Rather, it signals that the BIA, like the IJ, "also" concluded that Okpa
could not show extreme hardship. Because the BIA rested solely on
the ground that Okpa could not show extreme hardship, we must
examine whether the BIA erred in applying amended § 212(i) to his
claim.
IV.
We turn then to the merits of Okpa's retroactivity claim. The BIA
must apply the "law existing at the time of its review, even if different
from the law applied by the IJ." Ortiz v. INS, 179 F.3d 1148, 1156
(9th Cir. 1999). See also Urbina-Mauricio v. INS, 989 F.2d 1085,
1088 n.4 (9th Cir. 1993). The question we are asked to decide is
whether Congress intended for amended § 212(i) to apply to cases
pending before the BIA at the time of IIRIRA's enactment. In other
words, we must determine whether amended § 212(i) was the "law
existing at the time of [the BIA's review]." Ortiz, 179 F.3d at 1156.
In order to ascertain whether amended § 212(i) applies to pending
cases, we first ask "whether Congress has expressly prescribed the
statute's [temporal] reach." Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994). See also Velasquez-Gabriel v. Crocetti, No. 00-
1755, ___ F.3d ___, slip op. at 5 (4th Cir. Aug. 22, 2001). "If there
is no congressional directive on the temporal reach of a statute, we
determine whether the application of the statute to the conduct at
issue would result in a retroactive effect. If so, then in keeping with
our `traditional presumption' against retroactivity, we presume that
the statute does not apply to that conduct." Martin v. Hadix, 527 U.S.
343-52 (1999). See also Velasquez-Gabriel, No. 00-1755, slip op. at
5-6.
7
Congress did not expressly prescribe whether amended § 212(i)
applies to pending cases. The section does not contain an effective
date, and no generally applicable effective date applies. The legisla-
tive history is silent as to the section's effective date. Further, we can-
not discern § 212(i)'s effective date by negative implication. See
Lindh v. Murphy, 521 U.S. 320, 330 (1997). In Lindh the Supreme
Court was asked to decide whether §§ 101-106 of AEDPA applied to
pending cases. These sections had no effective date, but § 107 explic-
itly applied retroactively. The Court concluded that because § 107
explicitly applied retroactively, the negative implication was that
Congress intended for §§ 101-106 only to apply prospectively. See id.
In this case, we cannot draw such an inference. Section 212(i) was
amended by subtitle C of IIRIRA. Subtitle C contains several provi-
sions with various effective dates.3 3 Accordingly, we cannot discern
Congress's intent for the effective date of amended § 212(i). See, e.g.,
Velasquez-Gabriel, No. 00-1755, slip op. at 7-8 (concluding that Con-
gress's intent cannot be discerned by negative implication because
several of IIRIRA's sections contain various effective dates).
Because we cannot discern Congress's intent, we must determine
whether the statute has a retroactive effect. "A statute does not oper-
ate `retrospectively' merely because it is applied in a case arising
from conduct antedating the statute's enactment." Landgraf, 511 U.S.
at 269. Rather, a statute has retroactive effect when it "would impair
rights a party possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to transactions
already completed." Id. at 280. See also INS v. St. Cyr, 121 S. Ct.
2271, 2290 (2001) (stating that a statute has a retroactive effect when
it "attaches new legal consequences to events completed before its
enactment"). At oral argument Okpa's counsel could not articulate
why the statute would have a retroactive effect as to those aliens who
were involved in pending cases. Indeed, the only possible argument
is that Okpa would not have filed a fraudulent TPS application if he
had known that § 212 would be amended to require a showing of
_________________________________________________________________
3 Subtitle C contains §§ 341 to 353. Sections 341, 344, 350, and 352
explicitly apply prospectively only. Sections 342 and 346 become effec-
tive on a particular date. Sections 347, 348, and 351 explicitly apply
retroactively, as well as prospectively. Finally, Sections 343, 345, 349,
and 353 are silent as to the effective date.
8
extreme hardship. However, in De Osorio v. INS, 10 F.3d at 1034,
1042 (4th Cir. 1993), we rejected a similar argument as to why a stat-
ute had a retroactive effect. We stated that an alien could not reason-
ably rely "on the availability of a discretionary waiver of deportation
when choosing to engage in illegal . . . activity." See also Tasios v.
Reno, 204 F.3d 544, 551 (4th Cir. 2000). Therefore, the amended stat-
ute does not have a retroactive effect, and the BIA properly concluded
that the amended statute applies to Okpa's claim. 4
V.
We conclude that we have jurisdiction to review Okpa's retroactiv-
ity claim, but not his abuse of discretion claim. We hold that the BIA
did not err in applying amended § 212(i) to his claim. Accordingly,
Okpa's petition for review is dismissed for lack of jurisdiction on his
abuse of discretion claim and denied with respect to his retroactivity
claim.
PETITION DISMISSED IN PART
AND DENIED IN PART
_________________________________________________________________
4 We have considered Okpa's claims that applying amended § 212(i)
violates the Ex Post Facto Clause, the Due Process Clause, and the Equal
Protection Clause. We find all of these claims to be without merit.
Finally, we note that Okpa was not effectively deprived of a right to a
hearing even though the law changed while his case was on appeal. See
8 U.S.C. § 1229a. Okpa does not argue that he would have presented any
additional evidence or characterized the evidence in a different light if he
had known that the IJ was going to apply an extreme hardship standard.
9