IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60258
Summary Calendar
_____________________
FRANCIS OSA EHIGIE,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(A26 088 636)
_________________________________________________________________
November 21, 1995
Before KING, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
Francis Osa Ehigie challenges a final order of deportation
issued by the Board of Immigration Appeals (BIA). Finding no
error, we dismiss the petition for review.
Waiver of Admissibility under § 212(c)
*
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that this opinion should not be published.
Ehigie argues that the BIA erred in denying his application
for a waiver of admissibility under § 212(c) of the Immigration
and Nationality Act (Act), 8 U.S.C. § 1182(c). Section 212(c)
provides in pertinent part:
Aliens lawfully admitted for permanent resident
[sic] who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of
the Attorney General . . . .
8 U.S.C. § 1182(c). The statute has been interpreted to apply
not only to aliens who briefly left and then reentered the
country, but also to those who have not left the country and are
facing deportation. See Ghassan v. INS, 972 F.2d 631, 634 n.2
(5th Cir. 1992), cert. denied, 113 S. Ct. 1412 (1993). This
court reviews the BIA's denial of an applicant's petition for
relief under § 212(c) for abuse of discretion. Ghassan, 972 F.2d
at 634-35.
Under this standard, the Board's decision may
be reversed as an abuse of discretion when it
is made without rational explanation, or
inexplicably departs from established
policies. Further, a decision by the Board
may be found arbitrary if the Board fails to
address meaningfully all material factors
extant.
Id. at 635. In considering § 212(c) applications, the
immigration judge (IJ):
must balance the adverse factors evidencing
an alien's undesirability as a permanent
resident with the social and humane
considerations presented in his behalf to
determine whether the granting of section
212(c) relief appears in the best interests
of this country . . . .
2
Diaz-Resendez v. INS, 960 F.2d 493, 495-96 (5th Cir. 1992)
(internal quotation and citation omitted). The factors the BIA
considers are equities. Ghassan, 972 F.2d at 635.
Among the adverse factors considered by the BIA are the
nature and underlying circumstances of the deportation grounds at
issue. Ghassan, 972 F.2d at 634. Other adverse factors include
the presence of additional significant violations of immigration
laws, the existence of a criminal record, and if so, its nature,
recency, and seriousness, and the presence of other evidence
indicative of bad character or undesirability. Id.
Favorable factors include family ties within the United
States; residence of long duration in this country, particularly
when inception of residence occurred while respondent was of a
young age; evidence of hardship to the respondent and family if
deportation occurs; a history of employment; the existence of
property or business ties; evidence of value and service to the
community; proof of a genuine rehabilitation if a criminal record
exists; and other evidence of good character. Id.
In denying Ehigie's application for a waiver, the IJ
reasoned that Ehigie failed to demonstrate any unusual or
outstanding equities and that even had Ehigie demonstrated such
equities, his extensive criminal record and the amount of time
spent in prison compared to the length of his permanent residence
would probably mandate the denial of the application. The IJ
considered that Ehigie had a wife and daughter, both of whom were
citizens of the United States. She noted, however, that neither
3
Ehigie's wife nor daughter showed much interest in him. She also
noted that Ehigie's employment history was spotty, that his value
and service to the community was not unusual, and that the
hardship on Ehigie and his family if Ehigie were deported was not
unusual or outstanding.
The BIA, in adopting the IJ's reasons for denying the
§ 212(c) waiver application, adequately addressed the factors
weighing both in favor and against granting Ehigie's § 212(c)
application and determined that the application should not be
granted. The decision was not "without rational explanation,"
nor did the BIA "inexplicably depart from established policy."
Ehigie has not established that the BIA abused its discretion in
this regard.
Ehigie argues that the IJ's denial of a continuance during
which he could have compiled supporting documents for his
application for a § 212(c) waiver violated his due process and
equal protection rights. The BIA concluded that because Ehigie
identified no additional evidence which might have changed the
outcome of the hearing, his contention that the IJ erred in
denying a sixth continuance of the proceedings lacked merit. The
denial of a continuance was not an abuse of discretion.
Applications for Adjustment of Status and Waiver of Deportation
Ehigie does not contest the requirement of a Form I-130 in
order for him to be considered for an adjustment of status or for
a § 212(h) waiver of deportation. Rather, he argues that he
4
explained to the IJ that his wife had difficulty getting to the
INS office to file the Form I-130 for lack of transportation.
He argues that his wife did, in fact, file a Form I-130 on his
behalf by mail. As the INS notes, the only proof Ehigie offers
in support of his contention that his wife did in fact file the
Form I-130 is a receipt reflecting that he paid the filing fee on
February 2, 1995, more than two months after the November 21,
1994 hearing.
This court is authorized to review only the decision of the
BIA, and not that of the IJ. Ogbemudia v. INS, 988 F.2d 595, 598
(5th Cir. 1993). The court may consider errors by the IJ only to
the extent that they affect the BIA's decision. Id.
"To qualify for a § 212(h) adjustment of status or waiver of
inadmissibility . . . [Ehigie] must show that his exclusion would
result in `extreme hardship' to a qualifying family member."
Onyebuchi v. INS, No. 94-41176, slip op. at 2 (5th Cir. July 19,
1995) (unpublished). The regulations provide that
[b]efore an application for an adjustment of
status under section 245 of the Act may be
considered properly filed, a visa must be
immediately available. If a visa would be
immediately available upon approval of a visa
petition, the application will not be
considered properly filed unless such
petition has first been approved.
8 C.F.R. § 245.2(a)(2)(i). Because Ehigie sought to adjust his
status based upon his marriage to a United States citizen, such
proof should have been furnished by an approved immediate
relative petition, Form I-130. See 8 C.F.R. § 204.2; Ikhifa v.
INS, No. 93-5030 (5th Cir. January 25, 1994) (unpublished); see
5
Ikhifa v. INS, No. 92-4710 (5th Cir. March 18, 1993)
(unpublished).
At the September 16, 1994, hearing before the IJ, the IJ
warned Ehigie that an immediate relative visa petition had to be
filed on Ehigie's behalf by his wife and approved by the INS
before he could be considered for a § 212(h) waiver or for
readjustment of status. The BIA noted that during the
proceedings, the IJ repeatedly advised Ehigie that his wife's
visa petition had not been properly filed with the INS and that
it had to be approved before Ehigie could apply for adjustment of
status in conjunction with a § 212(h) waiver. The BIA noted that
although Ehigie acknowledged his understanding of the IJ's
warning, he failed to submit the required documents. The
immigration court "has the power to set its own docket in the
manner it sees fit to promote the most efficient disposition of
cases before it." Hwei-Jen Chou v. INS, 774 F.2d 1318, 1319 (5th
Cir. 1985). The BIA did not abuse its discretion in
pretermitting Ehigie's applications for readjustment of status
and for a § 212(h) waiver of inadmissibility.
Ehigie argues that the IJ violated his due process and equal
protection rights in denying his motion for a seven-day
continuance during which time he could have completed his
application for a § 212(h) waiver. "The grant of a continuance
rests in the sound discretion of the [IJ], who may grant an
adjournment of a deportation proceeding only for `good cause.'"
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Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986). The refusal to
grant a sixth continuance was not an abuse of discretion.
Application for Asylum
Ehigie argues that the BIA erred in denying his application
for political asylum and withholding of deportation based upon
his membership in a particular social group in Nigeria. The BIA
noted that although Ehigie's persecution claim was only fully
considered in his original proceeding, and not in the last
proceeding before the IJ, the BIA concurred with the IJ's
decision to deny asylum. The BIA determined that Ehigie failed
to establish that he was eligible for relief or that he merited
asylum. On this basis, the BIA rejected Ehigie's contention that
he should be granted another opportunity to relitigate his
persecution claim. Id.
This court generally reviews the BIA's determination that
the petitioner is ineligible for asylum or withholding of
deportation to determine if it is supported by substantial
evidence in the record. See 8 U.S.C. § 1105a(a)(4); Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994). This court will not
reverse the BIA's finding merely because it disagrees with the
BIA's evaluation of the facts. Jukic v. INS, 40 F.3d 747, 749
(5th Cir. 1994). Under the substantial evidence test, this court
may not reverse the BIA's factual determination unless the
evidence compels it. Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994). The alien must "show that the evidence . . . was so
7
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). At a hearing before the IJ, Ehigie testified
that although he would be unable to return to the area of Nigeria
in which his tribe was located, he would be able to visit other
parts of Nigeria. This evidence does not compel a reversal of
the BIA's determination that Ehigie failed to prove the requisite
fear of persecution.1
DISMISSED.
1
Ehigie argues that he should be afforded the
opportunity to reapply for adjustment of status. He appears to
be asking this court to reopen his deportation proceedings. This
appeal is not the proper vehicle to ask for such relief.
8