                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2054




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"Adopley v. Atty Gen USA" (2008). 2008 Decisions. Paper 1173.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1173


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                                                                    NOT PRECEDENTIAL


                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                          No. 07-2054
                                          __________

                         JACOB KWASI ABSOLUTE ADOPLEY,
                                          Petitioner,

                                                vs.

                                 ATTORNEY GENERAL OF
                                  THE UNITED STATES,
                                              Respondent.
                                      __________

                           On Petition for Review of Order of the
                               Board of Immigration Appeals
                                   BIA No. A28-779-420
                           Immigration Judge: Charles Honeyman
                                        ___________

                                  Submitted on May 16, 2008
                                        ___________

           Before: MCKEE, GARTH, Circuit Judges, and IRENAS,* District Judge.
                            (Opinion Filed: May 21, 2008)

                                          ___________

                                           OPINION
                                          ___________



       *
          Hon. Joseph E. Irenas, Judge, United States District Court for the District of New
Jersey, sitting by designation.

                                                 1
GARTH, Circuit Judge:


       Jacob Kwasi Absolute Adopley (“Adopley”) petitions this Court for review of the
Board of Immigration Appeals (“BIA”) order of March 8, 2007, affirming and adopting
the Immigration Judge’s (“IJ”) decision, which denied Adopley’s applications for
cancellation of removal, voluntary departure, and waiver of inadmissability because
Adopley failed to demonstrate “exceptional and extremely unusual hardship” as required
under 8 U.S.C. § 1229(b)(1)(D).
       Because Adopley failed to exhaust his administrative remedies before the BIA, we
lack jurisdiction and therefore dismiss the appeal.


                                              I.
       A native and citizen of Ghana and born May 23, 1956, Adopley entered the United
States in November 1983 on a B-2 visitor visa. Upon marrying a U.S. citizen, he became
a permanent resident in February 1991. Subsequently, Adopley was placed in removal
proceedings and ordered removed on August 3, 1998, because he adjusted his
immigration status based on a willful misrepresentation of a material fact. The
Immigration Judge found that Adopley did not divorce his first spouse until several years
after entering into a second marriage, contrary to his representation in the application for
adjustment of status.
       At the initial proceedings in 1998, the Immigration Judge found Adopley
statutorily ineligible for relief because he lacked good moral character due to the
misrepresentation on his application. The BIA reversed on the grounds that a false
statement on an application does not constitute false testimony that automatically
prohibits relief.
       Upon remand, the IJ, in a comprehensive opinion which thoroughly analyzed the
record, again denied Adopley’s applications for cancellation of removal, voluntary


                                              2
departure, and waiver of inadmissability. While there were certain factors in Adopley’s
favor, such as 22 years of residency in the United States, educational and occupational
experiences, contributions to science, and a commitment to the community, the
Immigration Judge found they were outweighed by negative factors, such as Adopley’s
demeanor in the court, his accusations of outrage toward judges, his lack of involvement
in his daughter’s life, unpaid traffic tickets, and refusal to comply with a family court
order.
         Therefore, the IJ found that Adopley did not deserve a favorable exercise of
discretion and on July 26, 2005 issued a deportation order, which the BIA subsequently
affirmed on March 8, 2007. Adopley filed a timely petition for review from this decision.


                                              II.
         8 U.S.C. § 1252(a)(1) provides for judicial review of final orders of removal. See
Romanishyn v. Atty. Gen., 455 F.3d 175, 180 (3d Cir. 2006). Where, as here, the Board
adopts the immigration judge’s decision and adds its own reasons, this Court reviews both
decisions. Fadiga v. Atty. Gen., 488 F.3d 142, 153, n. 16 (3d Cir. 2007). The standard of
review for questions of law is de novo. Id. at 153-54. Findings of fact are reviewed for
substantial evidence and, therefore, may not be set aside unless a reasonable fact-finder
would be compelled to find to the contrary. Gabuniya v. Atty. Gen., 463 F.3d 316, 321
(3d Cir. 2006). Finally, we have jurisdiction to determine our jurisdiction. Biskupski v.
Atty. Gen., 503 F.3d 274, 278 (3d Cir. 2007).


                                             III.
         Adopley argues that his due process rights were violated because the IJ admitted
hearsay evidence at the removal hearing, viz., letters from Adopley’s daughter and ex-
spouse testifying to his character. The Government responds that this Court lacks
jurisdiction to review the petition because Adopley failed to exhaust his administrative

                                              3
remedies with respect to this claim. In the alternative, the Government argues that
Adopley’s claim lacks merit because the Federal Rules of Evidence do not apply in
immigration proceedings and hearsay evidence may be used if it is probative and
fundamentally fair. It argues that the IJ’s admission of the two letters into evidence was
consistent with due process because both the daughter and the ex-spouse were present in
the courtroom and available to testify to the letters’ veracity. App. at 48.
       Under 8 U.S.C. § 1252(d)(1), a “court may review of a final order of removal only
if . . . the alien has exhausted all administrative remedies available to the alien as of
right.” It is well-established that a failure to exhaust administrative remedies results in a
lack of jurisdiction in the Court of Appeals. See Bonhometre v. Gonzales, 414 F.3d 442,
448 (3d Cir. 2005); Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003). Here, the
Petitioner did not raise before the BIA the issue of the alleged due process violation
through the admission of hearsay evidence. Therefore, we lack jurisdiction to review the
petition, and dismiss Adopley’s appeal.




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