Filed: May 12, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-12-2006 Onyejiaka v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3936 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Onyejiaka v. Atty Gen USA" (2006). 2006 Decisions. Paper 1115. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1115 This decision is brought to you for free and open access by the Opi
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-12-2006 Onyejiaka v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3936 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Onyejiaka v. Atty Gen USA" (2006). 2006 Decisions. Paper 1115. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1115 This decision is brought to you for free and open access by the Opin..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-12-2006
Onyejiaka v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3936
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Onyejiaka v. Atty Gen USA" (2006). 2006 Decisions. Paper 1115.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1115
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3936
________________
NELSON C. ONYEJIAKA,
Petitioner,
vs.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
_______________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A27 450 081)
Immigration Judge: Honorable Grace A. Sease
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 4, 2006
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
Filed May 12, 2006
_______________________
OPINION
_______________________
PER CURIAM.
Nelson C. Onyejiaka, a native and citizen of Nigeria, petitions for review of
a final order of the Board of Immigration Appeals (“BIA”). For the following reasons,
we will deny the petition for review.
1
Onyejiaka entered the United States as a student in 1983. His status was
adjusted to legal permanent resident in 1985. Onyejiaka enlisted in the United States
Army in 1986, and was honorably discharged in 1987 based on service-related injuries.
In 1990, he was convicted in federal court of importing heroin into the United States. See
18 U.S.C. § 952(a). However, he was granted a waiver of deportation for that conviction
pursuant to Immigration and Nationality Act (“INA”) § 212(c) [8 U.S.C. § 1182(c)]. In
August 2004, he was convicted in Pennsylvania state court of forgery, theft by deception,
and attempted forgery. See 18 Pa.C.S.A. §§ 4101(a)(1), 3922(a)(1), 901(a). Onyejiaka
was sentenced to a term of imprisonment of 6 to 12 months for the forgery conviction.
The Bureau of Immigration and Customs Enforcement charged Onyejiaka
with being subject to removal from the United States for having been convicted of an
aggravated felony as defined in INA §§ 101(a)(43)(R) [8 U.S.C. § 1101(a)(43)(R)] (an
offense relating to, inter alia, forgery, for which the term of imprisonment is at least one
year), see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been
convicted of two crimes involving moral turpitude, see INA § 237(a)(2)(A)(ii) [8 U.S.C.
§ 1227(a)(2)(A)(ii)]. Onyejiaka appeared before an Immigration Judge (“IJ”) and applied
for asylum, withholding of removal, and protection under the United Nations Convention
Against Torture (“CAT”). He alleged that if removed to Nigeria he would lose his
Veterans Administration (“VA”) medical benefits that he needs to treat his service-related
disability. The IJ also considered a claim that Onyejiaka would be subject to torture in
Nigeria pursuant to Decree 33, a provision by which the Nigerian government may take
2
into custody an individual who has been convicted of a drug offense.
The IJ concluded that Onyejiaka was removable as charged. The IJ also
found that Onyejiaka’s conviction for importation of heroin was a particularly serious
crime that rendered him statutorily ineligible for asylum, withholding of removal pursuant
to INA § 241(b)(3)(A), and withholding of removal pursuant to the CAT. See INA
§§ 208(b)(2)(A)(ii) [8 U.S.C. § 1158(b)(2)(A)(ii)]; 241(b)(3)(B)(ii) [8 U.S.C.
§ 1231(b)(3)(B)(ii)]; 8 C.F.R. § 208.16(d)(2). Finally, the IJ denied Onyejiaka’s request
for deferral of removal under the CAT, see C.F.R. § 208.17(a), because neither the
potential loss of VA medical benefits nor the possibility of being prosecuted under
Decree 33 amounted to a likelihood of torture.1 Onyejiaka appealed. On July 28, 2005,
the BIA “adopt[ed] and affirm[ed]” the IJ’s decision, noting its agreement on essentially
all points. Onyejiaka timely filed a petition for review in this Court.2 Contrary to the
government’s contention, Onyejiaka raises questions of law, which we have jurisdiction
to review. See INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)]; Singh v. Gonzales, 432
1
Because Onyejiaka did not make any arguments in his opening brief concerning the
denial of asylum, withholding of removal, and protection under the CAT, he has waived
these issues. See, e.g., Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 192 (3d Cir.
2005).
2
While his petition for review was pending, Onyejiaka filed a motion to reconsider
with the BIA. The BIA denied the motion on September 13, 2005, noting that Onyejiaka
had raised “no new legal argument or an aspect of the case which was overlooked.”
Because Onyejiaka did not petition for review of this order, we are without jurisdiction to
review it. See Stone v. INS, 514 U.S. 386, 406 (1995).
3
F.3d 533, 537 (3d Cir. 2006).
Onyejiaka claims that his conviction for forgery is not an aggravated felony
for two reasons. First, he alleges that his sentence of six to twelve months does not
satisfy the one-year imprisonment requirement of INA § 101(a)(43)(R). Importantly,
however, this type of indeterminate sentence is treated as functionally equivalent to a
sentence with only a maximum term. See Bovkun v. Ashcroft, 283 F.3d 166, 170-71 (3d
Cir. 2002). In addition, Onyejiaka’s maximum term of twelve months qualifies as a
sentence of “at least one year.” See Drakes v. Zimski,
240 F.3d 246, 251 (3d Cir. 2001);
see also United States v. Christopher,
239 F.3d 1191, 1193 (11th Cir. 2001).
Second, Onyejiaka contends that his Pennsylvania forgery conviction does
not constitute “an offense relating to . . . forgery” because the criminal statute of
conviction, 18 Pa.C.S.A. § 4101(a)(1), punishes conduct that falls outside the INA’s
definition.3 Section 4101(a)(1) provides that “[a] person is guilty of forgery if, with intent
to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to
be perpetrated by anyone, the actor . . . alters any writing of another without his
authority.” Although the statute encompasses an intent to injure, which arguably is
beyond the traditional definition of forgery, we have held that “Congress evidenced an
intent to define forgery in its broadest sense.” Drakes, 240 F.3d at 249. Notably, in
3
Because we employ a “formal categorical approach” in these circumstances, see
Taylor v. United States, 495 U.S. 575, 600 (1990), we will not consider the facts
underlying Onyejiaka’s conviction, as he urges.
4
Drakes we concluded that a conviction under a Delaware forgery statute which also
included an intent to injure qualified as an aggravated felony under § 101(a)(43)(R). Id.
at 248-50. Thus, under these circumstances, we conclude that Onyejiaka was properly
found removable for having been convicted of an aggravated felony as defined in
§ 101(a)(43)(R).4 As such, he is ineligible for cancellation of removal, a form of relief
available only to an alien who, among other things, “has not been convicted of any
aggravated felony.” INA § 240A(a) [8 U.S.C. § 1229b(a)].
Onyejiaka also alleges that he is a national of the United States because he
served in the military. Because Onyejiaka never presented his nationality claim to the
BIA, the claim is deemed unexhausted. See Popal v. Gonzales, 416 F.3d 249, 252 (3d
Cir. 2005). Absent exhaustion of available administrative remedies, we are without
jurisdiction to consider the claim. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)];
Popal,
416 F.3d at 252-53. Even if we were to exercise jurisdiction over Onyejiaka’s
unexhausted nationality claim, see Theagene v. Gonzales,
411 F.3d 1107, 1111 (9th Cir.
2005), we would reject it. A national is either a citizen of the United States, or “a person
who, though not a citizen of the United States, owes permanent allegiance to the United
States.” INA § 101(a)(22) [8 U.S.C. §1101(a)(22)]. For a citizen of another country,
“nothing less than citizenship will show ‘permanent allegiance to the United States.’”
4
We need not, therefore, address Onyejiaka’s alternative contention that he is not
removable pursuant to INA § 237(a)(2)(A)(ii) because his 1990 conviction for importing
heroin was waived pursuant to INA § 212(c), and because neither of his convictions
involved moral turpitude.
5
Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003). Onyejiaka’s prior military service,
without more, does not render him a citizen or national of the United States. See
Marquez- Almanzar v. INS,
418 F.3d 210, 216-18 (2d Cir. 2005).
For these reasons, and after careful consideration of the record and the
parties’ contentions, we will deny Onyejiaka’s petition for review.
6
