                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                        NOT PRECEDENTIAL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
