United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 29, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20047
Summary Calendar
_____________________
KESINGTON OLAJIDE OSILAJA,
Petitioner - Appellant,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL; MICHAEL
CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Respondents - Appellees.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A90 969 061
_________________________________________________________________
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:1
Kesington Olagide Osilaja seeks review2 of the order requiring
his removal. He contends that the Board of Immigration Appeals
1
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this opinion should not be published and is not precedent except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.
2
We note that Osilaja originally sought review of the BIA
order in the district court in a habeas action. However, during
the pendency of the appeal from the district court Congress passed
the REAL ID Act, effective March 11, 2005, which abolished habeas
jurisdiction in certain circumstances (including those presented
here)and provided jurisdiction for review in the Circuit Courts.
Consequently, under Rosales v. Bureau of Immigration and Customs
Enforcement, “habeas petitions on appeal as of May 11, 2005, such
as [Osilaja’s], are properly converted into petitions for review.”
426 F.3d 733, 736 (5th Cir. 2005). Thus we treat Osilaja’s appeal
as a timely petition for review of the BIA’s decision.
(BIA) wrongfully found him statutorily ineligible for discretionary
relief from deportation under former § 212(c) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(c). Reviewing the record de
novo and giving deference to the BIA’s permissible
interpretations, see INS v. Aquirre-Aguirre, 526 U.S. 415, 424
(1999), we affirm for the following reasons:
1. Former § 212(c) limits eligibility for discretionary
relief to “aliens lawfully admitted for permanent residence.” See
8 U.S.C. § 1182(c). Where permanent residency status is obtained
by false pretenses the “legally admitted for permanent resident”
requirement of former § 212(c) is not met. See, e.g., Matter of
Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983) (holding that
“[a]dmission is not lawful if it is regular only in form. The term
‘lawfully’ denotes compliance with substantive legal requirements,
not mere procedural regularity.”); Rodriguez v. Ashcroft, 58 Fed.
Appx. 596, 2003 WL 261829 (5th Cir. Jan. 20, 2003); see also Monett
v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986) (citing Longstaff and
finding that Monett was never “lawfully admitted for permanent
residence” and thus failed to meet the requirement of § 212(c)
because he concealed his drug trafficking conviction).
2. The undisputed facts are that Osilaja was admitted in
1988 for temporary residence, not permanent residence as he
asserts. In 1992 Osilaja applied for and obtained permanent
residency status. However, Osilija obtained this status by
2
concealing his 1990 narcotics convictions. Thus, because the 1992
grant of permanent residency was based on fraud, it fails to
satisfy the “lawfully admitted for permanent resident” requirement
of former § 212(c).
3. Because Osilaga fails to meet the eligibility
requirements for relief under the former § 212(c), the BIA was not
in error in denying Osilaga the relief he requested and,
consequently, the petition for review is
DENIED.
3