Court: Court of Appeals for the Third Circuit; October 5, 2009; Federal Appellate Court
Michael Ojo, a Nigerian national, is appealing two orders from the Board of Immigration Appeals (BIA): the July 12, 2007 order affirming the denial of his application for adjustment of status, and the January 24, 2008 order denying his motion to reopen removal proceedings. Ojo entered the U.S. in 1997 for medical treatment and overstayed his visa. He married U.S. citizen Wanda Cantrell in 2004, who subsequently filed an I-30 visa petition for him. However, during a 2005 USCIS interview, Cantrell withdrew the petition, claiming their marriage was fraudulent, which led to Ojo's removal proceedings.
At the removal hearing in November 2005, Ojo conceded to his removability but sought adjustment of status based on his marriage. Although his attorney noted there was no approved or pending I-130 petition, he planned to contest the withdrawal. The Immigration Judge (IJ) allowed time for Ojo’s counsel to address the matter. At a subsequent hearing in March 2006, IJ Garcy ruled against Ojo, citing the withdrawal form and refusing to consider claims of coercion regarding Cantrell's decision. Ojo’s requests for a continuance and change of venue were denied, leading to a final order of removal.
The BIA upheld IJ Garcy's decision, agreeing that Ojo could not challenge his wife's withdrawal during removal proceedings and that he failed to demonstrate eligibility for adjustment of status. Ojo later filed a motion to reopen his case, claiming Cantrell had submitted a new I-130 petition shortly before the BIA's July 2007 decision. Ultimately, the petitions for review were denied.
Ojo contended he was eligible to adjust his status but faced a denial from the Board of Immigration Appeals (BIA) due to his failure to submit a copy of his Form I-485 application with his motion to reopen. Ojo's primary argument against the BIA's July 12, 2007 decision was that the withdrawal of his I-130 petition by Cantrell was coerced and thus legally ineffective. He claimed a violation of due process when the Immigration Judge (IJ) barred him from contesting the withdrawal's validity. The BIA upheld the IJ's decision, determining that Ojo could not raise this argument in his removal proceedings, and found no authority supporting Ojo's claim that the IJ could reinstate the original I-130 petition.
Ojo further asserted that IJ Pugliese had informed him he did not need to file a new I-130 before his next hearing, which he believed constituted "the law of the case." However, the record did not support this assertion, indicating that IJ Pugliese had advised that Ojo was required to return with all applications, regardless of any potential discussion about the initial petition.
Additionally, Ojo claimed that the BIA's assignment of his appeal to a single-member panel was arbitrary. However, the BIA correctly found that Ojo failed to establish prima facie eligibility for relief, which did not meet the criteria for a three-member panel review.
Lastly, Ojo argued that the BIA erred in denying his motion for a change of venue, asserting that a new I-130 petition was not required. The BIA's decision to deny the change of venue was based on Ojo's failure to establish prima facie eligibility for relief, not the lack of a new I-130 petition, rendering his argument ineffective.
The BIA's decision on January 21, 2008, to deny Ojo's motion to reopen was reviewed for abuse of discretion, with the standard requiring Ojo to demonstrate that the denial was arbitrary, irrational, or contrary to law. Ojo failed to submit the required I-485 application for adjustment of status, leading to the conclusion that the BIA did not abuse its discretion. Ojo's additional arguments were found to lack merit, resulting in the denial of his petitions for review.
During the proceedings, Ojo’s attorney sought a recess to confirm a second I-130 petition from Cantrell, but was unsuccessful in contacting her. Ojo renewed his motion for a change of venue. The court has jurisdiction over claims of legal and constitutional errors under 8 U.S.C. § 1252(a)(2)(D). Ojo cited a case, Boukhris v. Perryman, regarding the validity of a visa petition withdrawal, but it did not pertain to BIA review contexts. He also referenced INS v. Lopez-Mendoza regarding coerced evidence, which was deemed irrelevant as it addressed Fourth Amendment issues.
Ojo mistakenly claimed that IJ Pugliese required applications unrelated to marriage-based adjustments. However, the hearing transcript confirmed that IJ Pugliese allowed Ojo to prepare any necessary application for relief. Ojo's assertion of requesting a three-member panel was unsupported by the record. Furthermore, while he argued that the BIA abused its discretion regarding marriage bona fides, the court deemed the BIA's denial justified on other grounds. Ojo's claims related to his removal violating international human rights were not previously raised before the BIA, leading to a jurisdictional bar for review. Consequently, motions to supplement the record on appeal were denied.
