Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2009

Irorere v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1288




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                 Nos. 07-1288 & 07-2309
                                      ___________

                                  PERCY O. IRORERE,
                                                 Petitioner
                                         vs.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A75-880-700)
                           Immigration Judge: Walter Durling
                       ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 22, 2009
        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                                Opinion filed: May 1, 2009
                                      ___________

                                           OPINION
                                          ___________

PER CURIAM.

              Percy O. Irorere, a native and citizen of Nigeria, seeks review of final

orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow,

we will grant the petitions for review.



                                               1
              On July 10, 1998, Irorere adjusted his immigration status to lawful

permanent resident on a conditional basis under section 216 of the Immigration and

Nationality Act (“INA”) based upon his marriage to a United States citizen. Under

section 216, legal status is granted for two years, but within ninety days before that period

expires, the alien and his spouse must apply for the removal of conditional status on a

Form I-751 and present evidence of a bona fide marriage. See 8 C.F.R. § 216.4.

Alternatively, if an alien or his spouse is unable to file a joint application, the alien may

seek a waiver. INA § 216(c)(4) [8 U.S.C. § 1186a(c)(4)]. Irorere failed to apply for

removal of the conditions or to seek a waiver, so his conditional resident status expired as

of July 11, 2000. The government instituted removal proceedings in July 2006.

              After a hearing, the Immigration Judge (“IJ”) found Irorere to be

removable. Irorere, then represented by counsel, requested a continuance so that he could

pursue a Form I-130 immediate relative visa petition 1 to once again adjust his status as a

lawful permanent resident. The IJ found that Irorere was prima facie eligible to adjust his

status but also found that he did not have an approved I-130 visa petition and had not

arranged for one to be filed in advance of the hearing. Moreover, the IJ did not believe

that the Department of Homeland Security would expedite any such petition because




              1
                Irorere remains married to the same United States citizen who filed the
previous I-130 petition on his behalf.

                                               2
Irorere had been convicted of a crime.2 Combined with factors including Irorere’s failure

to take any corrective action for more than six years, the IJ denied Irorere’s request for a

continuance.

               The BIA dismissed Irorere’s pro se appeal. In addition to the above

findings, the BIA noted the IJ’s finding at the hearing that Irorere, through counsel, stated

that the sole reason he had not timely filed an I-751 petition to remove the conditions on

residence was that he was unaware of the requirement to do so; the IJ found the

explanation did not constitute good cause or extenuating circumstances under INA

§ 216(d)(2)(B) to excuse the failure to timely file the I-751. The BIA also noted that

while Irorere had presented “a litany of events” to the BIA to explain his failure to timely

file, these arguments were not raised below and could not be considered by the BIA in the

first instance. The BIA found no error in the IJ’s denial of Irorere’s request for a

continuance and found no merit to Irorere’s claim that he was prevented from presenting

evidence to the IJ. The BIA then denied Irorere’s post-decision motion, construed either

as a motion to reopen or as a motion for reconsideration. Irorere filed pro se petitions for

review of both decisions.

               The government has filed a motion to dismiss the petitions for review,

asserting that under 8 U.S.C. §§ 1252(a)(2)(B)(ii), we lack jurisdiction to review

discretionary decisions by the agency. The government states that this matter involves the


               2
                   In his brief to the BIA, Irorere states that he was convicted of fraud.

                                                3
agency’s discretionary denial of Irorere’s request to file an I-751 beyond the typical

ninety-day filing period. The government appears to refer to the IJ’s finding at the

hearing that Irorere presented no good cause or extenuating circumstances under INA

§ 216(d)(2)(B) to excuse the failure to timely file the I-751. However, to the extent that

the agency decisions were based upon the IJ’s denial of Irorere’s motion for a

continuance to pursue a Form I-130 petition, we have jurisdiction over the petition for

review, and we review the denial of a continuance for an abuse of discretion. See Khan

v. Attorney General, 

, 233 (3d Cir. 2006). Moreover, as the government

concedes, we have jurisdiction to review questions of law or constitutional issues raised

in Irorere’s petition for review. See 8 U.S.C. § 1252(a)(2)(D).

              Several of Irorere’s issues warrant only brief discussion. First, Irorere

argues that the agency erred in requiring him to file a new Form I-130 immediate relative

petition, given that he already has an approved I-130 petition. Irorere refers to the I-130

form prepared in 1997 upon which his immigration status was adjusted in 1998.

However, Irorere’s conditional resident status expired and was terminated in 2001,

effective July 2000. There is no evidence in the record that he had a current approved I-

130 petition at the time of the IJ hearing.3 Next, Irorere contends that the IJ erroneously


              3
                It appears from Irorere’s argument that he believes that his previously-
approved I-130 remains viable today, notwithstanding the conditional nature of his
adjustment of status and the eventual expiration of that status. Because the IJ found no
good cause or extenuating circumstances to excuse the failure to timely file a Form I-751,
and because Irorere had not applied for a waiver, Irorere’s path under that scenario would

                                              4
made his criminal conviction–a non-deportable offense–a “key part of the deportation.”

Petr.’s Brief at 19. We disagree, as it is plain that the IJ found Irorere to be removable as

charged because his lawful resident status had terminated as a matter of law, not because

of his conviction. Also, Irorere argues that the IJ erred in combining a bond hearing with

his removal hearing in contravention of 8 C.F.R. § 3.19(d) (now 8 C.F.R. § 1003.19(d)).

The BIA noted in its decision that bond and removal proceedings are separate and apart.

BIA Jan. 19, 2007 Decision at 3. Upon review of the hearing transcript, although the IJ

observed that Irorere may not be eligible for bond, it does not appear that the IJ conducted

a bond hearing or entered any determination with respect to Irorere’s custody status or

bond. We discern no error on these issues.

              We now address Irorere’s due process argument. Irorere claims that the IJ

prevented him a meaningful opportunity to show good cause and extenuating

circumstances for failing to timely file an I-751. The BIA found no merit to Irorere’s

argument. Noting that the IJ did not allow Irorere to read from a lengthy prepared

statement, the BIA stated that the IJ invited Irorere to tell his story in his own words after

his counsel had finished presenting his case. Thus, the BIA concluded that Irorere had

the opportunity to present whatever information he wanted before the IJ entered his

decision.




be to once again pursue an I-130 petition to adjust his status back to lawful permanent
resident. Indeed, Irorere’s former counsel requested a continuance for that very purpose.

                                              5
              Notwithstanding the BIA’s description of events, the transcript of the

hearing reflects that the IJ interrupted Irorere’s presentation mid-sentence, after only a

few words, and did not allow any further argument or evidence. Instead, the IJ indicated

that he had already reached his decision in the case, advised Irorere to appeal to the BIA

if he so wished, and proceeded to issue the oral decision. (Oct. 3, 2006 Tr. at 6-8.) We

reject the BIA’s conclusion that Irorere was not prevented from presenting evidence at the

hearing. We note that on appeal to the BIA, Irorere preserved this issue and proffered

details concerning a showing of extenuating circumstances. The BIA characterized

Irorere’s allegations as “a litany of events” to make a showing under INA § 216(d)(2)(B),

see BIA Decision at 2, but the BIA refused to consider those assertions in the first

instance because none of the arguments were raised before the IJ. However, it appears

from Irorere’s position that he did not present those arguments to the IJ because the IJ

denied him the opportunity to do so.4

              We will grant the petitions for review and remand to the agency for further

proceedings consistent with this opinion. The government’s motion to dismiss is denied.




              4
                 Irorere argues in his response to the government’s motion to dismiss that
the BIA erred in failing to grant a continuance for him to apply for a hardship waiver
under INA § 216(c)(4) because he is prima facie eligible to adjust his status. The BIA did
not address the issue. However, although this issue is noted in his petition for review,
Irorere did not raise this argument in his brief, so we deem the argument waived. See
United States v. Quillen, 

, 224 (3d Cir. 2003).

                                              6