                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3239




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                              Nos. 04-3239 and 04-4091
                                   ____________

                                 UDUEBOR ONOHI,
                                          Petitioner

                                           v.

                             ALBERTO R. GONZALES,*
                         Attorney General of the United States,
                                               Respondent
                                   ____________

                           On Petition for Review from the
                      Orders of the Board of Immigration Appeals
                               (Board No. A75 874 469)
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 30, 2005

             Before: NYGAARD**, SMITH and FISHER, Circuit Judges.

                                (Filed: August 2, 2005 )
                                     ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.


      *
        Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43 (c).
       ** Honorable Richard L. Nygaard assumed senior status on July 9, 2005
       This case presents an appeal from the Board of Immigration Appeals’ (“BIA”)

denial of petitioner Uduebor Onohi’s (“Onohi”) application for adjustment of status and

the denial of his subsequent Motion to Reopen and Reconsider. We will affirm the BIA’s

denial of both the application and the motion.

                                    I. Standard of Review

       We review the BIA’s decision denying Onohi’s application for adjustment of

status for substantial evidence. See Dia v. Ashcroft, 353 F.3d 228, 248 (3d Cir. 2003) (en

banc). “Substantial evidence is more than a scintilla, and must do more than create a

suspicion of the existence of the fact to be established. It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion . . . .’” Id.

(quoting N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 399 (1939)).

“We will uphold the findings of the BIA to the extent that they are supported by

reasonable, substantial and probative evidence on the record considered as a whole, and

will reverse those findings only if there is evidence so compelling that no reasonable

factfinder could conclude as the BIA did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d

Cir. 2003). “Our power of review, however, extends only to the decision of the BIA.

Therefore, only if the BIA expressly adopts or defers to a finding of the IJ, will we review

the decision of the IJ.” Id. (internal citations omitted).

       Our review of the Board’s denial of Onohi’s Motion to Reopen and Reconsider is

for an abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005). The



                                               2
Board abuses its discretion when it applies an incorrect legal principle or makes factual

findings that are arbitrary and capricious. Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

                                      II. Discussion

                                            A.

       As we write only for the parties, we will recite a minimum of facts. Onohi is a

native and citizen of Nigeria who was admitted to the United States as a nonimmigrant

visitor on or about June 23, 1996. Onohi married United States citizen Debra David

Onohi (“Debra Onohi”) on March 31, 1997.1 On May 27, 1998, Onohi’s status was

adjusted to permanent resident on a conditional basis under INA § 216, 8 U.S.C. § 1186a.

       Onohi filed a timely petition to remove the conditions on his permanent resident

status, which was received by the Immigration and Naturalization Service (“INS”) on

March 6, 2000.2 In connection with this application, on January 28, 2002, Onohi and

Debra Onohi were interviewed separately by an INS officer. On January 31, 2002, the

INS District Director terminated Onohi’s permanent resident status.

       On February 15, 2002, the INS issued a Notice to Appear, charging Onohi with

being removable under INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i), as an alien

       1
        We note that Petitioner refers to Debra Onohi as his “now ex-wife” in his brief
before this Court. Because we find nothing in the record to suggest that the Onohis’
divorce had occurred or was known at the time of the BIA’s decision, we will assume for
purposes of this appeal that it was not.
       2
        On March 1, 2003, the INS became a part of the Department of Homeland
Security pursuant to Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(Nov. 25, 2002).

                                             3
whose conditional permanent resident status had been terminated. In seeking relief from

removal, Onohi sought review before the IJ of the District Director’s decision to

terminate his conditional permanent resident status. On April 11, 2002, Onohi appeared

before the IJ, admitted the allegations contained in the notice to appear, conceded the

charge of removability, and renewed his application for adjustment of status. On

August 23, 2002, Onohi testified before the IJ regarding his marriage to Debra Onohi.

The IJ also received testimony from Debra Onohi, her mother, and two of Onohi’s

friends.

       On August 23, 2002, the IJ denied Onohi’s application for adjustment of status,

finding serious doubt about the likelihood that Onohi and Debra Onohi were married for

legitimate reasons. The IJ based his decision largely upon witness testimony which he

found to be inconsistent and when not inconsistent, “general and not very persuasive.”

The IJ also noted a dearth of documentary evidence indicating that Onohi and Debra

Onohi had any co-mingling of assets or any other sort of shared life together.

       On July 6, 2004, the BIA affirmed the IJ’s decision. The BIA also noted the

significant inconsistencies in the testimony and lack of documentation supporting a

conclusion that Onohi and Debra Onohi intended to create a bona fide marriage. Onohi

filed a timely petition for review with this Court on August 5, 2004.

       On August 5, 2004, Onohi also filed a Motion to Reopen and Reconsider before

the BIA. The BIA denied that motion on September 28, 2004, finding that Onohi failed



                                             4
to present additional legal arguments which could not have been made during the BIA’s

prior review of his application. Onohi filed a timely petition for review of that decision

before this Court on October 22, 2004. On October 26, 2004, we ordered both petitions

for review consolidated for purposes of briefing and disposition.

                                             B.

       On appeal Onohi first contends that the BIA erred in its decision to deny Onohi’s

application to adjust his status, arguing that the BIA failed to follow its own procedures in

determining the legitimacy of his marriage to Debra Onohi. More specifically, Onohi

contends that the IJ focused solely on the inconsistencies in the testimony and

documentary record and failed to weigh the consistencies.

       Under 8 U.S.C.§ 1186a, a nonimmigrant alien may obtain an adjustment of status

to that of an alien lawfully admitted to the United States on a conditional basis as a result

of the marriage of the nonimmigrant alien to a United States citizen. In general, if the

Attorney General determines at any time prior to the second anniversary of the alien’s

obtaining conditional permanent resident status that the marriage was entered into for the

purpose of procuring the alien’s admission as an immigrant; that the marriage has been

judicially annulled or terminated, other than through the death of a spouse; or that the

required petition was procured by fee or other consideration, the permanent resident status

of the alien involved will be terminated. 8 U.S.C. § 1186a(b)(1).




                                              5
       In order for the conditional basis of the alien’s permanent residency to be removed,

the alien spouse and the petitioning spouse must (i) jointly submit to the Attorney General

a petition which requests the removal of such conditions and details certain required

information, and (ii) appear for a personal interview before an officer or employee of the

Service regarding the facts and information given. 8 U.S.C. § 1186a(c)(1). If the

Attorney General determines that the facts and information are not true, the parties shall

be so notified and the permanent resident status of the alien spouse will be terminated. 8

U.S.C. § 1186a(c)(3)(C). An alien whose permanent resident status is terminated may

seek review of this determination in removal proceedings. 8 U.S.C. § 1186a(c)(3)(D).

The Attorney General bears the burden of proving, by a preponderance of the evidence,

that the facts and information alleged in the petition are not true with respect to the

marriage. 8 U.S.C. § 1186a(c)(3)(D).

       Our review of the record persuades us that the BIA correctly denied Onohi’s

application for adjustment of status. Although Onohi asserts that the BIA overlooked

many consistencies between his and Debra Onohi’s testimony, these consistencies do not

trump the significant inconsistencies and contradictions in their testimony regarding basic

information about each other and their marriage. For example, Onohi testified that the

couple lived together before they were married, but Debra Onohi testified that the couple

did not cohabitate until after they were married in March 1997. Onohi also testified that

he purchased his wife’s wedding ring at a flea market; however, Debra Onohi testified



                                              6
that Onohi did not buy her a ring and that she purchased her ring prior to their marriage.

Additionally, Debra Onohi testified to her belief that Onohi had only completed 12th

grade; whereas, Onohi testified to having attained a Bachelor of Science Degree in

economics while still living in Nigeria. In light of these significant testimonial

inconsistencies and contradictions, the BIA’s decision to deny Onohi’s application for

adjustment of status was supported by substantial evidence.

       Onohi additionally challenges the BIA’s denial of his Motion to Reopen and

Reconsider. Onohi contends that the BIA erred in affirming the IJ’s August 23, 2002

decision where the IJ cited the dearth of documentary evidence as a basis for its decision,

after it emphasized the importance of testimonial evidence (versus documentary

evidence) at Onohi’s April 11, 2002 hearing. Onohi additionally argues that the BIA

erred in affirming the IJ without addressing the IJ’s alleged bias, supposedly

demonstrated by his statement that if he wrote the law, an applicant would automatically

lose his or her case for lying to the INS. Onohi’s arguments are without merit.

       First, our power of review extends only to the decision of the BIA. Kayembe, 334

F.3d at 234. Only if the BIA expressly adopts or defers to the IJ’s findings, will we

review the decision of the IJ. Id. The BIA neither adopted nor deferred to the IJ’s

findings. Thus, any assertion regarding the IJ’s decision or its underpinnings, including

Onohi’s allegations regarding the IJ’s allegedly improper reliance on the lack of




                                              7
documentary evidence and its supposed bias, are not properly a subject of the instant

appeal.

       Second, a motion to reconsider, governed by 8 C.F.R. § 1003.2(b), requires an

applicant to “specify[ ] the errors of fact or law in the prior Board decision” and to

support such errors “by pertinent authority.” A motion to reopen, governed by 8 C.F.R.

§ 1003.2(c), allows an applicant to provide new facts which would be proven if a hearing

were granted. The BIA can only grant such a motion if it appears “that the evidence

sought to be offered is material and was not available and could not have been discovered

or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c). Onohi has failed to

identify actual errors of fact or law in the prior BIA decision, nor has he presented any

new facts to be proven at a hearing. Thus, we find that the BIA did not abuse its

discretion in denying Onohi’s Motion to Reopen and Reconsider.

       For these reasons, we will affirm the BIA’s decisions to deny Onohi’s application

for adjustment of status and his Motion to Reopen and Reconsider.




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