Akinwande v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1258

SHOLA D. AKINWANDE,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Selya, Lynch, and Lipez, Circuit Judges.

Randy Olen for petitioner.

Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, with whom Linda S. Wernery, Senior Litigation Counsel,
Office of Immigration Litigation, and Peter D. Keisler, Assistant
Attorney General, Civil Division, were on brief, for respondent.

August 17, 2004
 LYNCH, Circuit Judge. Shola Akinwande, of Nigeria, seeks

review of the Board of Immigration Appeals' affirmance of an

immigration judge's denial of his applications for adjustment of

status and voluntary departure. The core of Akinwande's argument

involves an issue of law about the conduct of the deportation

proceedings. Specifically, Akinwande argues, under both the Due

Process Clause and INS regulation 8 C.F.R. § 1003.25, that the IJ

erred in permitting a witness, Akinwande's second ex-wife, to

testify via telephone. Akinwande's other arguments on appeal each

depend in large part on that alleged error of law. As best we can

tell, this is the first case to address this argument involving the

interpretation of 8 C.F.R. § 1003.25. We hold that there was no

error in the admission of the telephone testimony of the witness

and that Akinwande's other arguments fail. Accordingly, we affirm

the denials of adjustment of status and voluntary departure.

I.

Akinwande entered the United States on June 26, 1994 as

a visitor for pleasure. He remained here longer than his

authorized stay, and the INS commenced deportation proceedings

against him on October 18, 1995. He initially applied for asylum,

withholding of removal, and, in the alternative, voluntary

departure.

Then, on September 10, 1997, he married his third wife,

Kenke, who is an American citizen. On September 29, 1997, Kenke

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filed a visa petition on his behalf. Following the approval of

that petition, Akinwande withdrew his applications for asylum and

withholding of removal and instead applied for adjustment of status

based on the approved petition. This application did not stop the

deportation proceedings, which took place in Boston.

Shelly Nichols, Akinwande's second ex-wife, and Akinwande

himself were among the witnesses who testified during the hearings.

Nichols, who lived in Colorado at the time of the hearings,

testified by telephone. Her testimony contradicted Akinwande's

version of facts and events in highly material ways. In addition,

the INS submitted a letter from Nichols that contains numerous

allegations against Akinwande, and most significantly, expresses

Nichols' belief that Akinwande married her in order to seek

immigration benefits. The INS also submitted a forensic report

that concluded that some of the documents submitted by Akinwande

had been altered.

II.

We summarize the findings of the IJ, which were affirmed

without opinion by the BIA, before discussing Akinwande's

challenge. In short form, the IJ found, based largely on the

telephone testimony of Akinwande's second ex-wife, Shelly Nichols,

that Akinwande had entered into a prior fraudulent marriage with

Nichols. This meant, as the IJ determined, that Akinwande was not

eligible for adjustment of status.

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 The IJ found Nichols' testimony credible, noting that she

was calm and gave detailed and consistent answers. Among other

things, Nichols testified that Akinwande began to propose marriage

to her a week or two after they met and that he did not disclose to

her that he had been previously married and had children. She

explained that she learned of his previous marriage when she

accidentally discovered a folder of documents hidden beneath the

carpet in Akinwande's apartment. In addition to Akinwande's

marriage certificate from his previous marriage, the folder

included a pamphlet that offered advice on how to circumvent the

immigration rules, such as by alleging a domestic violence

situation. Nichols then left Akinwande and moved to Colorado.

While she was there, Akinwande called her and asked her to file

immigration papers for him. She testified that she wrote the

letter to the INS because Akinwande was calling her house and

"repeatedly threatening" her.

In contrast, the IJ found that Akinwande was not a

credible witness. This was based on his submission of altered

documents, his inconsistent and improbable testimony, and the

contrary testimony by Nichols. Among other things, Akinwande

claimed that Nichols, whom he thought was the "perfect woman"

before their marriage, was actually a drug abuser and a gang member

who threatened his life and bragged about being a murderess.

Nichols was employed as a state correctional officer and said that

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she was subject to drug testing; reasonably enough, the IJ deemed

Akinwande's allegations of Nichols' drug abuse unfounded. The IJ

was also very skeptical about Akinwande's claim that he was a

victim of abuse by Nichols. The IJ noted that Akinwande also

claimed to have been abused by his first wife, despite the fact

that his Nigerian divorce decree indicated that he abused her. In

addition, the IJ pointed to inconsistencies in Akinwande's account

of an alleged assault against him by Nichols and her gang friends.

Furthermore, Nichols said that Akinwande was in possession of a

pamphlet that advised that he could self-petition for adjustment of

status if he were involved in a domestic violence situation, and he

made repeated references in his testimony to Rhode Island domestic

abuse law.1

The IJ determined that Akinwande had entered into the

marriage with Nichols for the purpose of evading the immigration

laws and obtaining legal permanent residence based on the marriage,

noting that his efforts to paint himself as a victim of domestic

abuse once Nichols wanted to end the marriage were consistent with

this theory.

Under 8 U.S.C. § 1255, the Attorney General may, in his

discretion, adjust the status of a qualifying alien if "(1) the

alien makes an application for such adjustment, (2) the alien is

1
Akinwande and Nichols lived in Rhode Island during their
brief marriage.

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eligible to receive an immigrant visa and is admissible to the

United States for permanent residence, and (3) an immigrant visa is

immediately available to him at the time his application is filed."

8 U.S.C. § 1255(a). A petition for an immediate relative visa

cannot be approved if it is determined "that the alien has

attempted or conspired to enter into a marriage for the purpose of

evading the immigration laws." 8 U.S.C. § 1154(c). Accordingly,

the IJ denied Akinwande's application for adjustment of status

because he was prohibited by § 1154(c) from receiving an immediate

relative visa and thus could not satisfy the third prong for

adjustment under § 1255.

The IJ then went on to hold that even if the § 1154(c)

bar was not applicable to Akinwande, he would still be ineligible

for adjustment of status because he failed to meet the second prong

of § 1255, which requires that the alien seeking adjustment be

"admissible." Pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), "[a]ny

alien who, by fraud or willfully misrepresenting a material fact,

seeks to procure (or has sought to procure or has procured) [an

immigration] benefit . . . is inadmissible." Having determined

that Akinwande submitted fraudulent documents in support of his

asylum application, the IJ deemed him inadmissible under § 1182.

The IJ declined to waive this ground of inadmissibility, finding

that there was no reliable evidence to support a determination that

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Akinwande's removal would result in extreme hardship to his United

States citizen wife or their child. See 8 U.S.C. § 1182(i).

Furthermore, the IJ noted that even if Akinwande were

eligible for adjustment, she would still deny his application as a

matter of discretion on the basis of the "negative factors"

discussed in the decision.

The IJ also denied Akinwande's application for voluntary

departure because she found that he gave false testimony during the

proceedings and lacked the requisite good moral character to be

statutorily eligible. See 8 U.S.C. § 1229(c). In the alternative,

the IJ denied voluntary departure in the exercise of discretion,

based on Akinwande's submission of fraudulent documents and false

testimony. The IJ ordered Akinwande deported to Nigeria.

In the face of this formidable array of reasons for

denying his applications, Akinwande focuses on knocking out the

testimony of his ex-wife on the ground that both due process and

INS regulation 8 C.F.R. § 1003.25 prohibit telephone testimony from

a witness in INS hearings. He proceeds on the theory that the

telephone testimony infected every determination by the IJ -- both

factual and legal -- and that if it were excluded, the remaining

evidence would not be sufficient to support the IJ's conclusions.

There is little need to describe further the record of evidence of

persistent fraud by Akinwande. If the ex-wife's telephone

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testimony was admissible, it was sufficient to doom the

petitioner's arguments here.

III.

Initially, there is an issue of whether Akinwande

preserved an objection to the telephone testimony on which his

argument hangs. Akinwande's counsel twice orally objected to the

possibility of having Nichols testify by telephone at the hearing.

When counsel objected the second time and was overruled, he carried

on his protest and called the decision "an outrage." At that

point, the IJ made it clear that the objection had been decisively

overruled. She said: "Sir, you have been overruled. You can take

it up to the Board but I'm not going to have any type of this

behavior in my court room. Period." However, the IJ later made it

very clear that she would again entertain counsel's objection to

taking testimony by telephone. When Nichols could not be reached

by telephone at the March 3, 2000 hearing, the INS asked the IJ if

she would still entertain the telephone testimony if an explanation

was offered for Nichols' failure to be reached as scheduled. The

IJ stated: "Well, I'll allow you to make a, you can make your

motion and I'll just have to rely on it. I can't give you a yes or

no because she was supposed to be able to testify here today and

respondent's counsel will be able to lodge any objections"

(emphasis added). With that statement, the IJ unmistakably invited

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counsel to renew his objection if the INS filed a motion to take

Nichols' testimony by telephone.

But Akinwande's counsel did not maintain the objection.

Counsel filed no opposition after the government made its formal

motion on July 28, 2000 to have Nichols testify by telephone, and

counsel was silent when the IJ explained at the hearing on March

27, 2001 that she had granted the INS's unopposed motion.

Akinwande abandoned his objection to the telephone testimony by

failing to object in writing during the seven months while the

motion was pending and then failing to object at the hearing during

which the testimony was taken. See De Ocasio v. Ashcroft, No. 03-

1629, 2004 WL 1563213, at *3 (1st Cir. July 14, 2004) ("An alien

who does not object to the admissibility of evidence at [his]

deportation proceeding forfeits any objection to the admission of

that evidence."); Figueroa-Torres v. Toledo-Davila, 232 F.3d 270,

272 (1st Cir. 2000) ("a party may not sit by without objection to

rulings . . . and then after . . . judgment . . . come forward with

objections on appeal"). Akinwande also failed to raise his

objection to the telephone testimony in his appeal to the BIA.2

Still, in order to ensure that the denial of relief in

this case is not a miscarriage of justice, we go on to resolve the

2
Akinwande did complain briefly about the telephone
testimony in the appeal to the BIA, but only as part of his claim
that the IJ had demonstrated extreme bias toward him and his
counsel. Akinwande did not assert that the telephone testimony was
allowed in violation of INS regulations or the Due Process Clause.

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question of law presented. Akinwande's initial argument is that

the use of the telephone testimony violated 8 C.F.R. § 1003.25,

which states, in pertinent part:

Telephonic or video hearings. An Immigration Judge may
conduct hearings through video conference to the same
extent as he or she may conduct hearings in person. An
Immigration Judge may also conduct a hearing through a
telephone conference, but an evidentiary hearing on the
merits may only be conducted through a telephone
conference with the consent of the alien involved after
the alien has been advised of the right to proceed in
person or, where available, through a video conference .
. . .

Akinwande argues that an alien has a right under that regulation to

direct that all witnesses appear in person, and he seizes on the

language in the regulation that provides "an evidentiary hearing on

the merits may only be conducted through a telephone conference

with consent of the alien involved after the alien has been advised

of the right to proceed in person or, where available, through a

video conference."

The plain language of the regulation, however, reads

differently. The "right to proceed in person" belongs to the alien

and refers to the alien's appearance at hearings, not to the

appearance by witnesses. The regulation confers on the alien the

right to appear in person, not the right to direct that all

witnesses appear in person. That is also how the agency interprets

the rule.

Akinwande also argues that the telephone testimony

violated his constitutional rights to a fair hearing and to

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confront witnesses against him. But Akinwande was not entitled to

the same due process protections as a criminal defendant. He was

entitled to cross-examine witnesses presented by the government,

see 8 U.S.C. § 1229a(b)(4)(B), and his counsel did cross-examine

Nichols at length. There was no constitutional violation. See

Beltran-Tirado v. INS, 213 F.3d 1179, 1185-86 (9th Cir. 2000)

(upholding the use of telephone testimony in deportation

proceedings against a due process challenge).

IV.

Because we have already concluded that the IJ properly

allowed Nichols to testify via telephone, we take up the rest of

Akinwande's arguments stripped of that core element. What is left

of Akinwande's appeal amounts to an attack on the IJ's credibility

findings and findings of fact. We review those findings under the

deferential substantial evidence standard.3 INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992).

Substantial evidence supports the IJ's credibility

determinations. The IJ gave specific reasons for those

determinations. See Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.

2004) ("Where . . . the judicial officer who saw and heard the

3
The government argues that even if this court were to
reverse the statutory denials of adjustment of status and voluntary
departure, the IJ's alternative denials of those forms of relief as
a matter of discretion would not be reviewable. The government
does not rely solely on the proposition that the IJ would have
denied relief for discretionary reasons, however, and we need not
reach that argument.

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witness makes an adverse credibility determination and supports

that determination with specific findings, an appellate court

should treat that determination with great respect."). It is

enough to note that the many inconsistencies in Akinwande's

testimony alone were enough to raise doubts about his credibility.

The contrary testimony offered by Nichols, which was a coherent and

logical recitation of the same events, understandably cast further

doubt on Akinwande's credibility, as did his submission of altered

documents.

Having found Nichols credible and Akinwande not credible,

the IJ had substantial evidence to supports her factual finding

that Akinwande married Nichols for the purpose of obtaining

permanent resident status based on the marriage. Akinwande engaged

in a pattern of behavior that was consistent with a finding that he

was trying to evade the immigration laws. His efforts to marry

Nichols quickly, to keep her from learning about his previous

marriage, and to portray her as an abuser once she left him

evidenced an intent to use the marriage as a vehicle for obtaining

permanent resident status.

The IJ also properly denied Akinwande's application for

voluntary departure on the ground that he lacked the requisite good

moral character. The inconsistencies within Akinwande's own

testimony, coupled with the contradictions of his account in

Nichols' credible testimony, provided substantial evidence on which

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to conclude that Akinwande had given false testimony, and a finding

that an alien has given false testimony for the purpose of

obtaining immigration benefits bars a finding of good moral

character. See 8 U.S.C. § 1101(f)(6).

V.

The petition for review is denied.

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