Filed: Aug. 28, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 8-28-2007 Okafor v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4794 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Okafor v. Atty Gen USA" (2007). 2007 Decisions. Paper 533. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/533 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 8-28-2007 Okafor v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4794 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Okafor v. Atty Gen USA" (2007). 2007 Decisions. Paper 533. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/533 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-28-2007
Okafor v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4794
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Okafor v. Atty Gen USA" (2007). 2007 Decisions. Paper 533.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/533
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
CLD-329 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4794
________________
IFY OKAFOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A77-038-400)
Immigration Judge: Eugene Pugliese
_______________________________________
Submitted For Possible Dismissal for Lack of Jurisdiction or Summary Action Under
Third Circuit LAR 27.4 and I.O.P. 10.6
August 2, 2007
BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES
(Filed August 28, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Ify Okafor, a native and citizen of Nigeria, petitions for review of an order of the
Board of Immigration Appeals (“BIA”). The Government moves to dismiss the petition
for lack of jurisdiction, or in the alternative, to summarily affirm the BIA’s order. We
agree that we lack jurisdiction over the petition for review, but on different grounds than
those asserted by the Government. Thus, we will dismiss the petition for review.
The Immigration and Nationality Service issued Okafor a notice to appear in 2004.
At her hearing, Okafor conceded, through counsel, that she entered the United States in
1990, and that she is present without being admitted or paroled. The Immigration Judge
(“IJ”) found Okafor removable on this basis. Okafor applied for cancellation of removal
and an adjustment of status to a lawful permanent resident based upon a petition for an
alien relative filed by her husband. The INS had denied Okafor’s application for an
adjustment of status because she submitted a fraudulent birth certificate. Okafor also
argued at her hearing that she should be afforded a waiver under Section 212(i) of the
Immigration and Nationality Act, which allows for a discretionary waiver of
inadmissibility due to fraudulent documentation.
In support of her applications for relief from removal, Okafor testified that her
husband, Emmanuel Edobi, would be unable to care for their four minor children, who are
United States citizens, if she were removed because he has high blood pressure and other
medical problems. Edobi testified that he became a United States citizen through
naturalization. Edobi also stated that he would have a hard time if Okafor is deported due
to his medical problems.
Edobi further testified that he filed a petition for an alien relative on Okafor’s
behalf, and the INS requested her birth certificate. Edobi contacted Okafor’s family in
Nigeria, who sent him a birth certificate and an affidavit. The INS determined that the
documents were fraudulent. Okafor’s father purportedly wrote and signed the affidavit in
2
1999, but he had died in 1995. Edobi testified that he did not notice the fraudulent
affidavit when he submitted it to the INS. Edobi contacted Okafor’s family again and
submitted additional affidavits attesting to her date of birth.
Regarding Okafor’s request for a waiver under § 212(i), the IJ noted that Okafor
did not file the required application form. Even if she had filed the form, the IJ stated that
he would deny her application to adjust her status because any equities did not outweigh
the fraud she committed in providing false documents. The IJ also concluded that Okafor
did not show that her removal would result in extreme hardship to Edobi, as required by
§ 212(i). The IJ explained that Okafor did not submit much documentation about Edobi’s
medical problems, and there was no evidence that Edobi was disabled or unable to work.
The IJ recognized that, if Okafor was deported, Edobi would suffer hardship because he
would have to care for himself and four children if he decided to stay here. But the IJ
concluded that it was not clear that he would suffer an extreme hardship beyond that
which is expected when a family member is deported.
The IJ also denied Okafor’s application for cancellation of removal because she
had not shown the requisite exceptional or extremely unusual hardship to Edobi or her
children. And the IJ stated that Okafor was not worthy of discretionary relief because she
submitted fraudulent materials. The IJ did not believe that Edobi did not know what he
was submitting to the INS. He also noted inconsistencies in the testimony. The IJ stated
that, if Okafor had requested voluntary departure, he would have denied relief because
Okafor was not a person of good moral character.
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The BIA dismissed Okafor’s appeal. The BIA was troubled by Okafor’s
submission of a fraudulent birth certificate and an affidavit ostensibly signed by her father
after his death. The BIA agreed that Okafor was unworthy of relief as a matter of
discretion, and that she did not demonstrate eligibility for the relief she sought. The BIA
also rejected Okafor’s requests for relief under other sections of the immigration statute,
noting that she did not seek relief before the IJ. This petition for review followed.
In her brief, Okafor raised two issues for our review. First, Okafor argued that the
IJ erred by stating that hardship to her children was not a consideration in determining
whether to grant a waiver of inadmissibility for misrepresentation. Second, Okafor
argued that the BIA and IJ erred in failing to consider relevant factors when adjudicating
her applications for adjustment of status and a waiver of inadmissibility for
misrepresentation. Okafor asserted that we have jurisdiction to consider both issues.
The Government correctly argues in its motion to dismiss that we lack jurisdiction
to review the discretionary determinations of the BIA and IJ under 8 U.S.C.
§ 1252(a)(2)(B). See Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005) (noting that
§ 1252(a)(2)(B) forecloses review of an exercise of discretion in granting an adjustment
of status); 8 U.S.C. § 1182(i)(2) (providing that the Court lacks jurisdiction to review the
discretionary decision to deny a § 212(i) waiver); Mendez-Moranchel v. Ashcroft,
338
F.3d 176, 179 (3d Cir. 2003) (holding the Court lacks jurisdiction to review a decision
that an alien did not meet the hardship requirement for cancellation of removal). But
Okafor does not argue in her brief that the BIA and IJ erred in their discretionary
4
determinations. She argues that the IJ did not consider the proper factors in deciding
whether to grant an adjustment of status or a waiver. We have jurisdiction to entertain
this legal issue. Sukwanputra v. Gonzalez, 434 F.3d 627, 634 (3d Cir. 2006).
Although we will not grant the motion to dismiss for the reasons stated by the
Government, we must dismiss the petition for review for another reason: Okafor has not
exhausted her administrative remedies. The legal errors Okafor raises in her brief were
not asserted at any time in the administrative proceedings. In her appeal to the BIA,
Okafor argued that she satisfied the requirements for cancellation of removal, an issue she
does not pursue in her brief to this Court. Okafor also argued that a waiver of
inadmissibility should have been granted based on extreme hardship to Edobi. Okafor did
not argue that the IJ failed to consider the proper factors in denying a waiver. Because we
may only review a final order of removal if an alien has exhausted all administrative
remedies available to the alien as of right, we must dismiss this petition. 8 U.S.C.
§ 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); Duvall v.
Elwood,
336 F.3d 228, 231 (3d Cir. 2003).1
Accordingly, we will grant the Government’s motion to dismiss.
1
In her opposition to the motion to dismiss, Okafor addresses the effect of her failure to
apply for a waiver of admissibility. Because we conclude Okafor did not exhaust her
administrative remedies, we do not consider this issue.
5
