Okoroha v. Immigration & Naturalization Service

FLOYD R. GIBSON,

concurring in part and dissenting in part.

I concur in the majority’s decision not to overturn the BIA’s finding that Okoroha is deportable on the grounds that he had been convicted of “a crime involving moral turpitude.” I respectfully dissent from the remand for further proceedings on Okoroha’s persecution and hardship claims. I would affirm the BIA’s order of deportation.

First, the record before us is sufficient to support the BIA’s finding that Okoroha failed to show by objective evidence á “clear probability1 of persecution” on account of his membership in the Ibo tribe and his involvement in the Biafran movement in the late 1960’s and early 1970’s. Although we do not have the articles Okoroha allegedly wrote dealing with the Nigerian Civil War in the late 60’s and early 70’s, or the letters from friends indicating Okoroha should not return to Nigeria, this deficiency does not warrant a remand. The insignificance of these letters and articles is revealed in the hearing transcript and the opinion of the immigration judge. In his testimony Okoroha admitted that his last expressed opposition to the Nigerian government was in 1973, that he is not presently engaged in activities hostile to the Nigerian government, that the Nigerian Civil War articles he wrote did not include his name, that he had visited Nigeria for two weeks in 1977 without incident, and that he had no problem getting his Nigerian passport renewed in 1977.

Furthermore, Okoroha’s claims regarding persecution for his earlier anti-government activities were vague, conclusory, and inconsistent with other evidence in the record. Specifically emphasized by the immigration judge was a State Department letter concluding that Okoroha did not have a well-founded fear of persecution. This letter revealed that the tumultuous conditions in Nigeria that prompted Okoroha’s departure in 1972 have significantly changed and that the Nigerian government has made and is making “extraordinary efforts” to reintegrate Biafrin sympathizers into all phases of society, including the government. Though the majority summarily discounts *386this letter as unsubstantiated (supra, p. 383, footnote 5), it appears consistent with Okoroha’s own testimony that in 1977 he went to Nigeria for two weeks and returned safely and that he had no difficulty in obtaining a renewal of his Nigerian passport in 1977. And, as the Board noted, Okoroha admitted that the Nigerian government was not responsible for the deaths of his parents.

I cannot agree with the majority that the Board, on review of an immigration judge’s decision finding an alien deportable, must demonstrate that it considered every single piece of evidence proffered by an alien, no matter how trivial and self-serving. All that is required is that the Board has adequately set forth the relevant evidence it considered and the reasons for its decision. Ramos v. INS, 695 F.2d 181, 188 (5th Cir. 1983). In any event, the Board did consider the “missing documents” to the extent that the content of such documents was reflected by Okoroha’s testimony during the administrative hearing. The immigration judge appropriately discounted these documents in view of other evidence in the record militating against Okoroha’s persecution claim.

Secondly, I disagree with the majority’s make-weight contention that the BIA erred in failing to evaluate Okoroha’s “extreme hardship” claims. The immigration judge set forth the specific grounds for the denial of Okoroha’s only three statutory hardship claims. First, the immigration judge found that Okoroha was ineligible for hardship relief under § 1254(a) because he had not established good moral character for the required time period. Second, the immigration judge denied his claim for voluntary departure under § 1254(e) because that provision excludes relief for aliens, such as Okoroha, who have been found deportable under § 1254(a)(1). Third, the judge found Okoroha ineligible for relief under 8 U.S.C. § 1182(c) because he had not met the seven-year permanent residence requirement of that section.

In his statement of reasons for appeal to the BIA, Okoroha failed to challenge these findings of ineligibility under §§ 1254(a) & (e) and 1182(c), and instead contended that deportation of him would “as a matter of law result in de facto deportation of his U.S.C. (sic) wife and child in violation of the INA regulations and the United States Constitution.” I cannot agree with the majority that this statement sufficiently apprised the Board of Okoroha’s appeal of the immigration judge’s finding of ineligibility for hardship relief. In any event, the immigration judge appropriately disposed of the only three statutory claims which Okoroha now raises on this appeal. First, as to the claim under § 1254(a), I agree with the immigration judge that Okoroha has not met the eligibility proviso of § 1254(a)(2), which requires “physical presence] in the United States for not less than ten years following the commission of an act ... constituting a ground for deportation .... ”2 Here the acts which constituted the grounds for deportation — i.e., the acts constituting “a crime involving moral turpitude” (8 U.S.C. § 1251(a)(4) — occurred in 1977 and Okoroha was convicted for such acts in 1978. Similarly, as the immigration judge found, Okoroha is ineligible for voluntary departure under § 1254(e) because he was found deportable under § 1254(a)(1). Finally, as noted by the immigration judge, Okoroha failed to meet the seven-year permanent residence requirement for relief under § 1182(c).

. I am inclined to agree with the court in Rejaie v. INS, 691 F.2d 139, 142-46 (3d Cir.1982) that the 1980 Refugee Act, modifying 8 U.S.C. § 1253(h), was not designed to lessen the standard that the alien must meet in order to avoid deportation on the ground of political or religious persecution. Admittedly, this is a close question that the Supreme Court must ultimately resolve. See Stevic v. Sava, 678 F.2d 401 (2d Cir.1982), cert, granted,-U.S.-, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983). However, assuming arguendo that by defining refugee as one who has a “well-founded fear of persecution,” (See 8 U.S.C. § 1101(a)(42)(A)), Congress intended to establish a lesser burden of proof than the “clear probability of persecution” standard, the findings of the BIA and the immigration judge, taken in their entirety, suggest that Okoroha failed to support any legitimate fear of persecution. (See page 9 of Decision of the Immigration Judge).

. The ten-year continuous presence requirement of § 1254(a)(2) applies instead of the seven-year requirement of § 1254(a)(1) because Okoroha was found deportable under § 1251(a)(4). See 8 U.S.C. § 1254(a)(2).