Filed: Apr. 11, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1705 MOBOLAJI OLUFUNMILAYO AOKO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: March 20, 2013 Decided: April 11, 2013 Before DAVIS and THACKER, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation. Petition denied by unpublished per curiam opinion. ARGUED
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1705 MOBOLAJI OLUFUNMILAYO AOKO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: March 20, 2013 Decided: April 11, 2013 Before DAVIS and THACKER, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation. Petition denied by unpublished per curiam opinion. ARGUED:..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1705
MOBOLAJI OLUFUNMILAYO AOKO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 20, 2013 Decided: April 11, 2013
Before DAVIS and THACKER, Circuit Judges, and Mark S. DAVIS,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Fatai A. Suleman, AMITY, KUM & SULEMAN, PA, Greenbelt,
Maryland, for Petitioner. Robert Michael Stalzer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, Thomas B. Fatouros, Senior Litigation Counsel,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Mobolaji Olufunmilayo Aoko entered the United
States in 1990 on a tourist visa. Aoko is a Nigerian citizen,
but her 1991 application for Temporary Protected Status (“TPS”)
represented that she was Liberian. She argued that the
misrepresentation was the work of an unscrupulous immigration
practitioner, and she did not learn of it until her TPS
interview (in which she admitted she was Nigerian). The Board of
Immigration Appeals (the “BIA”) rejected her explanation for the
falsehood and held that she willfully misrepresented her
citizenship and did not timely recant the misrepresentation. The
BIA therefore concluded that she is inadmissible under §
212(a)(6)(C)(i) of the Immigration and Nationality Act (the
“INA”), and thus ineligible to adjust her status to that of
lawful permanent resident (“LPR”). We hold that substantial
evidence supports the Board’s findings and conclusions, and that
we lack jurisdiction to hear Aoko’s challenge to the denial of
her application for a waiver of inadmissibility. Accordingly, we
are constrained to deny Aoko’s petition for review.
I.
A.
This case has a long and complicated procedural history.
Because that history is central to the issues on appeal, we set
it out in some detail.
2
Aoko, a native and citizen of Nigeria, entered the United
States in November 1990 as a nonimmigrant visitor for pleasure.
Though authorized to stay only until May 15, 1991, she remained
in the country past that date. Under disputed circumstances,
Aoko applied for TPS and employment authorization in October
1991 based on the false representation that she was Liberian.
After she acknowledged in her December 1991 TPS interview that
she was Nigerian, the Immigration and Naturalization Service
(the “INS”) served her with an Order to Show Cause. She then
applied for asylum and withholding of removal based on religious
persecution, i.e., by Muslims against Christians.
At the June 1993 asylum hearing, Aoko testified as follows. 1
In October 1991, a friend introduced her to a man in New York
who said he was a lawyer. That man -- “Mr. Atitebi” -- told Aoko
that “he would be able to change [her] status and get [her a]
green card.” J.A. 489, 490. Atitebi asked for $1,800 cash,
though Aoko eventually paid only $1,500. Atitebi did not explain
the basis on which he would get Aoko a green card; rather, he
merely “asked for [her] name and [her] age and he asked [her] to
1
All hearings were conducted in English, without the aid of
an interpreter in the Yoruba language; though an interpreter was
offered, Aoko declined, stating, “I speak English fine.” J.A.
437.
3
sign some papers.” J.A. 493. On cross-examination, she testified
about the TPS application as follows:
Q. Did you read that form when you signed it ma’am?
A. I did not read it.
Q. But you signed it - -
A. I signed it.
J.A. 521.
Aoko next heard from Atitebi in the first week of December
1991, when he sent a letter telling her to come to New York for
an immigration interview later that month. She did so, picking
up a packet of information from Atitebi’s sister the night
before the interview. Aoko opened the packet and was confused by
the enclosed documents’ references to Liberia. Among these
documents was a “crib sheet” containing answers to basic
questions about Liberia. J.A. 1217.
Aoko attended the interview later that month, bringing
along the packet; it was this interview that brought her to
INS’s attention. At the beginning of the interview, the
interviewer told Aoko “to tell [him] the truth about [her]self.”
J.A. 495. At that point, she understood that Atitebi had
represented to INS that Aoko was Liberian. Aoko described the
subsequent conversation as follows:
I told him I am a Nigerian. I came in November 1990.
He said he knew that a lot of people have been, been
outside trying to deceive you that they can get green
card for you. He knew they already took money from me
to help me with this green card. So when I told him
that was exactly what happened. That a man told me he
4
would be able to help me to get a green card and he
took some money from me and asked me to show up for
the interview. I told him the truth.
J.A. 496.
In an oral decision on June 23, 1993, the Immigration Judge
(the “IJ”) denied the applications for asylum and withholding of
removal, finding that Aoko was “not a credible witness.” J.A.
1104. 2 Aoko appealed, and the BIA affirmed on November 25, 1998.
She did not seek judicial review.
Aoko then retained another attorney, and in 2002 filed a
motion to reopen based primarily on the existence of her two
young children, born in 1995 and 1998, and the fact that one of
them had severe asthma. On May 22, 2003, the BIA denied the
motion to reopen as untimely, as it “would have been due on or
before February 23, 1999.” J.A. 1020.
Aoko then retained new counsel, and in August 2005 filed a
motion to remand based on the allegedly ineffective assistance
of two of her previous attorneys (both retained subsequent to
Atitebi). Aoko’s affidavit attached to the motion explained that
on November 7, 1997, the first attorney received an approval
2
The IJ pointed to instances where Aoko changed her story.
Aoko first claimed that she had been raped after she was
detained following a religious demonstration, but then retracted
that statement. Additionally, she testified that she had been
beaten so badly that she was hospitalized for two weeks, though
this fact was omitted from her written asylum application.
5
notice for an immigrant worker petition that was filed on Aoko’s
behalf by her employer (Aoko had become a registered nurse while
in the United States), but failed to file the appropriate motion
with the BIA. Rather, Aoko asserted that the first attorney
incompetently filed an application for adjustment of status with
the INS, which the INS denied based on lack of jurisdiction.
Aoko also asserted that the first attorney failed to notify Aoko
of the BIA’s 1998 dismissal of her appeal, and she did not
become aware of that dismissal until around May 10, 2000.
Regarding the second attorney, Aoko asserted that she retained
him around June 30, 2000, but he did not file the proper motion
to reopen with the BIA until December 30, 2002. Aoko also
asserted that the second attorney failed to support the motion
with the approved immigrant petition. Finally, Aoko asserted
that the second attorney failed to inform her of the BIA’s
denial of the untimely motion.
On October 27, 2005, the BIA reopened proceedings sua
sponte (as a motion to reopen would have been time-barred),
finding that Aoko “suffered prejudice as a result of her former
counsels’ ineffective assistance.” J.A. 823. The BIA noted that
“it appears that [Aoko] is admissible to the United States for
permanent residence . . . .” J.A. 823. It thus remanded to the
IJ “solely for adjudication of her application for adjustment of
status.” J.A. 823.
6
B.
A new IJ held a hearing on May 16, 2006. The attorney for
the government asserted that Aoko was “inadmissible for fraud or
willful misrepresentation” based on the Liberia-based TPS
application, and that a waiver of inadmissibility under INA §
212(i) 3 was therefore required before Aoko could adjust her
status. J.A. 541. On cross-examination, Aoko testified
inconsistently regarding the TPS application, first stating that
she “did not read it” before signing it, and then testifying as
follows:
Q. Are you saying that you executed a document that
was blank?
A. No.
Q. Did you read the document before you executed it?
A. I did.
Q. Did you see that it said Liberia?
A. Yes.
Q. And you executed it anyway?
A. I did.
J.A. 556.
Nevertheless, the IJ granted Aoko’s application for
adjustment of status in an oral decision on May 16, 2006. The IJ
noted that the BIA’s 2005 decision stated that “it appears that
[Aoko] is admissible to the United States for permanent
3
Under this section, a noncitizen may obtain a
discretionary waiver of inadmissibility due to fraud or willful
misrepresentation where the inadmissibility would result in
extreme hardship to a citizen or LPR spouse or parent of the
noncitizen. 8 U.S.C. § 1182(i)(1).
7
residence,” and that the Department of Homeland Security (“DHS”)
“filed nothing with [the IJ] or the Board following the Board’s
decision calling into question her admissibility.” J.A. 424. The
IJ then “concluded that there simply [was] not a sufficient
showing that [Aoko] engaged in a willful misrepresentation of a
material fact” such that she would be inadmissible under INA §
212(a)(6)(C)(i). J.A. 425.
DHS appealed the IJ’s decision on June 14, 2006. On
December 26, 2007, the BIA issued a decision remanding for
further proceedings. The BIA first noted that its previous
reference to Aoko’s apparent admissibility “was merely a
preliminary judgment made in the context of determining whether
she was prima facie eligible for relief; it was not the ‘law of
the case’ or an otherwise binding determination on her
admissibility.” J.A. 355. Second, the BIA relieved DHS of
affirmatively charging Aoko with deportability, finding that
because DHS had established her deportability by clear and
convincing evidence, the burden had shifted to Aoko to offer
evidence that would support an application for relief. Third,
the BIA stated that the IJ’s determination that Aoko’s
misrepresentation was not willful was “not supported by any of
the important subsidiary factual determinations that must
necessarily underlie such a conclusion,” such as whether Aoko
“had knowledge of the falsity of the information contained in
8
her TPS application.” Id. Fourth, the BIA acknowledged Aoko’s
argument that even if she misrepresented her nationality when
applying for TPS, she timely recanted the misrepresentation.
J.A. 356. However, it determined that BIA decisions “have not
applied any such timely recantation exception to inadmissibility
determinations under 212(a)(6)(C)(i) of the Act,” and thus the
parties and the IJ were “free to explore whether it would be
appropriate to expand the timely recantation principle to the
inadmissibility context . . . .” Id.
After hearing arguments from the parties on December 15,
2008, the IJ delivered another oral decision. The IJ gave Aoko’s
1993 testimony “somewhat less weight” because at that time she
was represented by counsel later shown to be ineffective. J.A.
316. Nevertheless, the IJ found that (1) Aoko “did admit to
having knowledge that [the TPS application] misrepresented her
citizenship,” and thus that the misrepresentation was willful;
and (2) Aoko “ha[d] not demonstrated sufficiently that she
timely withdrew the misrepresentation,” which, the IJ noted,
would have been “as soon as she got knowledge of the
misrepresentation,” taking “steps to correct” it. J.A. 317-18.
Accordingly, the IJ indicated that Aoko would have to seek a
waiver of inadmissibility under INA § 212(i) in order to
continue to pursue adjustment of status.
9
Aoko applied for that waiver on May 13, 2009. In a hearing
on the matter on June 30, 2009, Aoko and Aoko’s LPR mother
testified that Aoko’s mother would suffer extreme hardship if
Aoko were to be deported. The testimony focused on (1) Aoko’s
two young children, one of whom has severe asthma, and the
prospect of Aoko’s mother having to take care of them without
Aoko; (2) Aoko’s mother’s high blood pressure and diabetes; and
(3) the financial hardship that Aoko’s mother would face were
Aoko -- the family’s only breadwinner -- deported. Aoko’s mother
also testified that she traveled to Nigeria for four to six
months every two years.
The IJ issued a written decision and order on August 9,
2010, denying Aoko’s waiver application and granting her
voluntary departure but ordering her removed if voluntary
departure conditions were not met. The IJ found that though
“[t]here is no doubt that [Aoko’s] mother would face significant
hardship” were Aoko deported, “in particular from loss of income
and companionship,” Aoko did not “establish that her LPR mother
would suffer extreme hardship as that term has been defined in
the governing case law.” J.A. 80. Regarding health, the IJ noted
that though Aoko “was given the opportunity to provide
additional documentary evidence” regarding her mother’s medical
conditions, “no additional evidence was provided.” J.A. 80.
Further, Aoko’s mother had “apparently managed to stay in
10
Nigeria for extended periods of time without significant
difficulties in terms of her health or otherwise.” J.A. 80.
Though the IJ noted that Aoko’s “sons would face significant
hardship” were Aoko removed, any hardship to them could not
constitute a basis for the waiver. J.A. 80. Regarding economic
hardship, which the IJ found was “the main factor in the case,”
the IJ found that it “was not a sufficient basis for a finding
of extreme hardship in the absence of other significant
equities.” J.A. 81.
Aoko appealed, challenging the IJ’s conclusions regarding
(1) her knowledge of the misrepresentation in the TPS
application; (2) whether she had timely recanted any
misrepresentation; and (3) whether she had established that her
LPR mother would face extreme hardship were Aoko deported. On
May 2, 2012, the BIA issued a decision affirming each of the
IJ’s conclusions. Regarding Aoko’s knowledge of the
misrepresentation, the BIA held that the IJ did not clearly err
because “[t]he record reveal[ed] equivocal accounts of what
occurred.” J.A. 4. Regarding Aoko’s potential recanting of the
misrepresentation, the BIA noted that even if it “were to find
that the timely recantation exception applies in this context,”
there was “no indication” that Aoko “made any efforts to correct
or withdraw the information provided in her application before
the interview,” and thus any recantation was not timely. J.A. 4.
11
Regarding the waiver application, the BIA “considered the
hardship factors” and found that the IJ did not err in denying
the application. J.A. 5. In particular, the BIA noted that Aoko
“ha[d] not established that her mother would not be eligible for
government aid, such as medicaid or medicare” or “other types of
assistance such as food stamps or whether she is physically able
to find and maintain employment.” J.A. 5. Finally, the BIA
ordered Aoko removed because she had failed to post a voluntary
departure bond. J.A. 5.
Aoko timely petitioned for review.
II.
A.
Where, as here, the BIA affirms and supplements an IJ’s
order, “the factual findings and reasoning contained in both
decisions are subject to judicial review.” Niang v. Gonzales,
492 F.3d 505, 511 n.8 (4th Cir. 2007). “[A] decision that an
alien is not eligible for admission to the United States is
conclusive unless manifestly contrary to law.” 8 U.S.C. §
1252(b)(4)(C). “We review the BIA’s administrative findings of
fact under the substantial evidence rule,” Haoua v. Gonzales,
472 F.3d 227, 231 (4th Cir. 2007), and are obliged to treat them
as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. §
1252(b)(4)(B). “We also defer to credibility findings that are
12
supported by substantial evidence.” Camara v. Ashcroft, 378 F.3d
361, 367 (4th Cir. 2004). “Though broad, this deference is not
absolute,” id., as an IJ’s adverse credibility determination
must be supported by “a specific, cogent reason,” id. (quoting
Figeroa v. INS,
886 F.2d 76, 78 (4th Cir. 1989)).
B.
Here, an initial question surrounds the applicable burden
of proof. The government has the initial “burden of establishing
by clear and convincing evidence that . . . the alien is
deportable.” 8 U.S.C. § 1229a(c)(3)(A). At the relief stage,
however, the burden shifts to the noncitizen. 8 C.F.R. § 1240.8
sets out the applicable burdens of proof. Subsection (d), which
covers relief from removal, provides as follows:
The respondent shall have the burden of establishing
that he or she is eligible for any requested benefit
or privilege and that it should be granted in the
exercise of discretion. If the evidence indicates that
one or more of the grounds for mandatory denial of the
application for relief may apply, the alien shall have
the burden of proving by a preponderance of the
evidence that such grounds do not apply.
8 C.F.R. § 1240.8(d). See also 8 U.S.C. § 1229a(c)(4)(A) (“An
alien applying for relief or protection from removal has the
burden of proof to establish that the alien [ ] satisfies the
applicable eligibility requirements.”).
Aoko conceded deportability. When her immigrant-worker
petition was approved, she sought relief from deportation
13
through adjustment of status. To be eligible to adjust her
status to that of LPR, Aoko must be “admissible to the United
States for permanent residence . . . .” 8 U.S.C. § 1255(a).
INA § 212 sets out provisions relating to “inadmissible
aliens.” 8 U.S.C. § 1182. Under INA § 212(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) a visa, other documentation, or admission into the
United States or other benefit provided under this chapter is
inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). It is undisputed
that citizenship is a “material fact,” and that TPS is an “other
benefit”; the disputed question is whether Aoko’s representation
of Liberian citizenship was willful.
In short, because the evidence indicated that a mandatory
ground for the denial of Aoko’s adjustment-of-status application
(i.e., willful misrepresentation of a material fact to obtain an
immigration benefit) may apply, Aoko had the burden of proving
by a preponderance that it did not (i.e., that any
misrepresentation was not willful).
C.
We next proceed to examine whether substantial evidence
supports the conclusion that Aoko willfully misrepresented her
citizenship in the 1991 TPS application, thus rendering her
inadmissible under INA § 212(a)(6)(C)(i). We hold that it does.
14
The evidence bearing on Aoko’s knowledge of her
misrepresented citizenship consisted of (1) the TPS application
itself, which contained her signature as well as a certification
that the contents of the application were true and correct; (2)
Aoko’s 1993 testimony from her asylum hearing, in which she
testified that she did not read the TPS application before
signing it; and (3) Aoko’s inconsistent testimony in her 2006
adjustment-of-status hearing, in which she first stated that she
did not read the application, but then testified that she did
read it, saw that it said Liberia, but executed it anyway.
Because the evidence was equivocal as to whether Aoko read
the TPS application at the time she signed it (and thus whether
she had knowledge of its falsity at that time), it supports the
IJ’s finding and the BIA’s affirmation of that finding. The
evidence in favor of Aoko’s position is simply not so strong
that “any reasonable adjudicator would be compelled to conclude”
that the IJ and the BIA erred in reaching a contrary conclusion.
8 U.S.C. § 1252(b)(4)(B). Aoko’s arguments to the contrary fail
to recognize the deferential standard of review with which we
are obliged to treat the IJ’s findings of fact and the BIA’s
affirmation of those findings; indeed, her argument heading
asserts only that a “[p]reponderance” of evidence shows that she
lacked knowledge of the misrepresentation. Aoko Br. 13.
15
We thus hold that substantial evidence supports the
conclusion that Aoko willfully misrepresented her citizenship.
D.
We next examine whether substantial evidence supports the
conclusion that Aoko did not timely recant the
misrepresentation. Assuming without deciding that the
recantation principle applies to inadmissibility determinations,
we hold that substantial evidence supports the IJ’s and BIA’s
determinations that Aoko failed to timely recant.
Neither of Aoko’s two main arguments suffice to show that a
reasonable adjudicator would be compelled to conclude that the
IJ and BIA erred in this regard. First, Aoko argues that the
only evidence in the record concerning the recantation is her
1993 testimony, and that testimony supports the view that she
recanted immediately upon learning of the misrepresentation.
But, as the IJ noted, “there were some credibility issues with
the hearing in 1993,” and “[w]e do not have complete information
about exactly what was said at the TPS interview and when . . .
.” J.A. 317. In other words, the IJ took account of the previous
IJ’s adverse credibility finding, and decided not to credit
Aoko’s testimony regarding any recantation. We must “defer to
credibility findings that are supported by substantial evidence”
where those findings are supported by “a specific, cogent
reason.” Camara, 378 F.3d at 367 (4th Cir. 2004). The 1993 IJ
16
adequately explained that the reason for his credibility
determination stemmed from “the discrepancy between [Aoko’s]
testimony and the glaring absence of . . . facts [concerning her
asserted beating and hospitalization] in her application,” as
well as the fact that she “claimed that first she was raped and
then changed her testimony that, no, she wasn’t raped, she was
only threatened to be raped.” J.A. 1104. This is a specific,
cogent reason, and supports the IJ’s determination that because
of the credibility issues of the 1993 testimony, Aoko failed to
“demonstrate[] sufficiently that she timely withdrew the
misrepresentation.” J.A. 318.
Second, Aoko argues that the lack of markings on the TPS
application show that it was “never adjudicated on the merits,”
and thus that Aoko “withdrew the application before a decision
was made” on it. Aoko Br. 20. But Aoko must show more than just
a retraction before the TPS application was adjudicated on the
merits. See Matter of Namio, 14 I. & N. Dec. 412, 414 (BIA 1973)
(“[R]ecantation must be voluntary and without delay.”). As the
IJ noted, a timely withdrawal would have come “very shortly
after she had knowledge of the misrepresentation . . . .” J.A.
318. And because the evidence was equivocal as to when Aoko knew
of the misrepresentation in the TPS application, it was also
equivocal as to when a timely retraction should have taken
place.
17
In sum, substantial evidence supports the conclusion that
Aoko failed to timely recant.
III.
A.
Aoko next argues that the BIA committed legal error in
concluding that she failed to establish that her LPR mother
would suffer extreme hardship were Aoko to be removed, and thus
that Aoko was ineligible for a waiver under INA § 212(i). We
hold that we lack jurisdiction to examine this issue.
Under INA § 212(i)(1), a noncitizen inadmissible for fraud
or material misrepresentation may seek a waiver based on extreme
hardship to an LPR or U.S. citizen spouse or parent. 8 U.S.C. §
1182(i)(1). INA § 212(i)(2) provides that “[n]o court shall have
jurisdiction to review a decision . . . regarding a waiver under
paragraph (1).” 8 U.S.C. § 1182(i)(2). See also 8 U.S.C. §
1252(a)(2)(B) (“[N]o court shall have jurisdiction to review [ ]
any judgment regarding the granting of relief under section . .
. 1182(i) . . . .”). However, the REAL ID Act of 2005
added a new subsection (D) to the judicial review
provisions in the [INA]. Subsection (D) states:
“Nothing in subparagraph (B) . . . which limits or
eliminates judicial review, shall be construed as
precluding review of constitutional claims or
questions of law raised upon a petition for review
filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. §
1252(a)(2)(D). Subsection (B)’s jurisdiction-stripping
default remained unchanged, but was revised to
indicate that courts lacked jurisdiction “except as
18
provided in subparagraph (D).” Id. § 1252(a)(2)(B). In
effect, therefore, the REAL ID Act confers upon courts
of appeal a narrowly circumscribed jurisdiction to
resolve constitutional claims or questions of law
raised by aliens seeking discretionary relief.
Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir. 2006).
Regarding the relevant factors in an extreme-hardship
analysis, the BIA has stated that they
include, but are not limited to, the following: [1]
the presence of lawful permanent resident or United
States citizen family ties to this country; [2] the
qualifying relative’s family ties outside the United
States; [3] the conditions in the country or countries
to which the qualifying relative would relocate and
the extent of the qualifying relative’s ties to such
countries; [4] the financial impact of departure from
this country; and, finally, [5] significant conditions
of health, particularly when tied to an unavailability
of suitable medical care in the country to which the
qualifying relative would relocate.
In Re Cervantes-Gonzalez, 22 I. & N. Dec. 560, 565-66 (BIA
1999).
B.
Aoko argues that the BIA’s denial of her § 212(i) waiver
application was “legally incorrect” because (1) the BIA failed
to consider all the hardship factors; and (2) the BIA applied
the higher standard of “extreme and unusual hardship,” rather
than the applicable standard of “extreme hardship.” Aoko Br. 21,
23. We disagree and hold that Aoko fails to raise a question of
law as to the denial of her § 212(i) waiver application.
Accordingly, this Court lacks jurisdiction to examine it.
19
The IJ’s written decision was thorough, examining (1)
Aoko’s mother’s family ties in this country; (2) her family ties
in Nigeria; (3) country conditions in Nigeria; (4) the financial
impact that Aoko’s deportation would have on her mother; (5)
Aoko’s mother’s health; and (6) Aoko’s children. The IJ
determined that “economic hardship [was] the main factor in this
case,” but concluded that the economic hardship that would face
Aoko’s mother was insufficient “in the absence of other
significant equities.” J.A. 80-81. The BIA adopted the IJ’s
analysis, finding, in addition, that Aoko had not shown “that
her mother would not be eligible for government aid, such as
medicaid or medicare,” or whether she might be “eligible for
other types of assistance such as food stamps or whether she is
physically able to find and maintain employment.” J.A. 5.
Neither the IJ nor the BIA used the term “extreme and unusual
hardship,” and neither analyzed whether any hardship Aoko’s
mother would face would be unusual. Accordingly, all relevant
hardship factors were analyzed, and neither the IJ nor the BIA
applied a more stringent legal standard.
Though Aoko frames her challenge as a legal one, it raises
no legal questions, and we thus lack jurisdiction to hear it.
IV.
For the foregoing reasons, Aoko’s petition for review is
DENIED.
20
