UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-60051
Summary Calendar
_______________________
CHIKIOKE OVUIKE,
Petitioner,
versus
UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Immigration and Naturalization Service
(A26-083-107)
_________________________________________________________________
(October 12, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Following the decision of the Board of Immigration Appeals to affirm an immigration
judge’s order of deportation, Chikioke Ovuike petitioned this court to review the Board’s decision.
Ovuike contends that the Board erred in not finding that his deportation would result in “extreme
hardship” to his spouse and in failing to consider his eligibility for waiver of deportation. Finding no
error, we dismiss the petition for review.
BACKGROUND
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion should not be published.
The Immigration and Naturalization Service (INS) issued an order to show cause
(OCS) charging Ovuike, a native-born Nigerian, with deportability from the United States under §
241(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a)(4)(1970), as an alien convicted
of two crimes involving moral turpitude.1 At his deportation hearing, Ovuike admitted the allegations
in the OCS, conceded his deportability, and applied for a readjustment of status and waiver of
inadmissibility pursuant to § 212(h) of the Act, 8 U.S.C.A. § 1182(h)(1970). The immigration judge
(IJ) denied his request for a § 212(h) wavier because Ovuike had failed to demonstrate that his
deportation would result in “extreme hardship” to his U.S. citizen wife and because Ovuike did not
warrant the waiver as a matter of discretion.
The Board of Immigration Appeals (Board) dismissed Ovuike’s appeal, finding that
Ovuike did not warrant a grant of adjustment or a waiver as a matter of discretion. Ovuike petitioned
this court to review the Board’s decision contending that the Board abused its discretion by finding
that he failed to demonstrate that his spouse would suffer “extreme hardship” if he was deported and
that the Board erred when it failed to consider his eligibility for a waiver of deportation under §
212(c), 8 U.S.C.A. § 1182(c)(1995).
DISCUSSION
In relevant part, section 212(h) provides that the Attorney General, may in her
discretion, waive a finding of inadmissibility of an alien who is “the spouse, parent, or 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 exclusion would result in
extreme hardship to the United States citizen . . . .” 8 U.S.C.A. § 1182(h)(1995). This court’s review
of the Board decisions “is limited by the broad discret ion accorded the Attorney General and the
Board of Immigration Appeals as [her] delegate” and is reviewed for abuse of discretion. Osuchukwu
1 Under this provision, the Attorney General may deport an alien who “at any time after entry is convicted
of two crimes involving moral turpitude . . . regardless of whether confined therefor and regardless of whether the convictions
where in a single trial.” 8 U.S.C.A. § 1251(a)(4)(1970). The Immigration Act of 1990 (IMMACT) revised and renumbered
the deportability grounds for deportation proceedings commenced on or after March 1, 1991. Section 602, IMMACT, Pub. L.
No. 101-649, 104 Stat. 4978, 5077-82 (Nov. 29, 1990). Since petitioner’s proceedings commenced on August 24, 1989, with
the issuance of his OSC, the revised grounds do not apply.
2
v. Immigration & Naturalization Serv., 744 F.2d 1136, 1137, 1139 (5th Cir. 1984). The Board’s
scope of discretion under § 212(h) is the same as that applied in a suspension-of-deportation
proceeding under § 244(a)(1), 8 U.S.C.A. § 1254(a)(1). Id. at 1140. In that context, this court has
stated that “the [Board] abuse[s] its discretion only in a case where the hardship is uniquely extreme,
at or closely approaching the outer limits of the most severe hardship the alien could suffer and so
severe that any reasonable person would necessarily conclude that the hardship is extreme.”
Hernandez-Cordero v. United States Immigration & Naturalization Serv., 819 F.2d 558, 563 (5th
Cir. 1987).
When measured against this standard, the Board did not abuse its discretion in finding
that the hardship facing Ovuike’s spouse was not extreme. Ovuike presented evidence of his wife’s
physical disability. However, the evidence also showed that Mrs. Ovuike relied upon her family
members to care for her during Ovuike’s ten month incarceration for an earlier crime and her
testimony suggests that she would again rely upon her family if he was not available. Additionally,
although Ovuike and his wife testified that he assists her, she is able to care for herself while Ovuike
attends school and works between five and fourteen hours a day. Ovuike’s deportation will likely be
an inconvenience, but he has not shown that the Board’s decision was an abuse of discretion.
Ovuike also disputes what he perceives is the finding by the IJ and the Board that the
evidence of his wife’s total disability was not credible and that the IJ and the Board failed to consider
evidence of his rehabilitation, his school attendance, and his employment. This court will not
substitute its “judgment for that of the [Board] or the IJ with respect to the credibility of the
witnesses or ultimate factual findings based on credibility determinations,” Chun v. Immigration and
Naturalization Serv., 40 F.3d 76, 78 (5th Cir. 1994), and “we are not permitted to review the Board’s
opinion for the sufficiency of record support or even for clear error.” Osuchukwu, 744 F.2d at 1142.
Based on the facts, the Board did not abuse its discretion in making a no extreme hardship
determination.
3
Lastly, Ovuike argues that the Board erred when it failed to consider his eligibility for
a waiver of deportation under § 212(c), 8 U.S.C.A. § 1182(c). He contends that he became eligible
for a § 212 waiver while his appeal was pending before the Board.
Ovuike raises this issue for the first time on appeal. This court’s review is limited to
the administrative record. 8 U.S.C.A. § 1105(a)(4) & (c); Hernandez v. Immigration and
Naturalization Serv., 539 F.2d 384, 385-86 (5th Cir. 1976). Consequently, this court may not
consider this issue.
CONCLUSION
For the foregoing reasons, the petition for review is DISMISSED.
4