                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2887




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Fatunmbi v. Atty Gen USA" (2003). 2003 Decisions. Paper 185.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/185


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 2003 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                                                          NOT PRECEDENTIAL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. 02-2887


                         HAFEEZ O. FATUNMBI,
                                        Petitioner

                                     v.

                      ATTORNEY GENERAL U.S.A.


                  On Petition for Review of an Order of the
                      Board of Immigration Appeals
                           (BIA No. A27-112-273)




                           Argued July 31, 2003

     Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                          (Filed October 28, 2003)


DAVID E. PIVER, ESQUIRE (ARGUED)
150 Strafford Avenue, Suite 115
Wayne, Pennsylvania 19087
      Attorney for Petitioner

JOHN D. WILLIAMS, ESQUIRE (ARGUED)
MICHAEL P. LINDEMANN, ESQUIRE
DOUGLAS E. GINSBURG, ESQUIRE
TERRI J. SCADRON, ESQUIRE
JOHN M. McADAMS, JR., ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
      Attorneys for Respondent



                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Petitioner Hafeez Fatunmbi, a native and citizen of Nigeria, came to the United

States in August 1981 on a student visa. Following his arrival he married, had three

children, all of whom are United States citizens, and earned a doctoral degree in

analytical chemistry. On March 24, 1997, the Immigration and Naturalization Service

charged him with being deportable under section 241(a)(1)(B) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B), as someone who overstayed his visa.

His wife was charged as deportable under the same provision as someone who entered the

United States without inspection.

       Fatunmbi and his wife applied for suspension of deportation under former INA §

244(a)(1), which provided for the Attorney General, in the exercise of discretion, to

suspend deportation if: (1) the individual has been physically present in the United States

for seven years; (2) the individual has been a person of good moral character during those

seven years; and (3) deportation would result in extreme hardship to a spouse or child

who is either a citizen or a lawful permanent resident. 8 U.S.C. § 1254(a)(1) (repealed).

Even if these factors were met the Attorney General could still exercise discretion to deny

                                             2
suspension of deportation. See So Chun Chung v. U.S. Immigration & Naturalization

Serv., 602 F.2d 608, 611 (3d Cir. 1979).

       On June 5, 1998, a Philadelphia Immigration Judge (“IJ”) decided that Fatunmbi

had satisfied the physical presence and extreme hardship requirements, but he denied

relief anyway. 1 The Board of Immigration Appeals (“BIA”) affirmed the IJ’s Oral

Decision without opinion on June 10, 2002 pursuant to 8 C.F.R. § 3.1(a)(7). Fatunmbi

timely petitioned for review, and the government has argued that we do not have

jurisdiction, contending that the IJ’s Oral Decision is discretionary and unreviewable.

       We will remand the record to the Board of Immigration Appeals, and ask the

Board to remand the record to the Immigration Judge for clarification of the basis, or

bases, of the Oral Decision. The IJ’s decision is the final agency action when a case is

streamlined, 8 C.F.R. § 3.1(a)(7)(iii), and we are unable to conclusively determine our

jurisdiction, or lack thereof, without knowing the exact basis of it. “If the BIA

streamlines a case ... the regulatory scheme gives us a green light to scrutinize the IJ’s

decision as we would a decision by the BIA itself.” See Falcon Carriche v. Ashcroft, 335

F.3d 1009, 1018 (9 th Cir. 2003).2

   1
    Mrs. Fatunmbi was found to have satisfied all three requirements and was granted
suspension of deportation. She is not a party to the petition for review.
   2
    The issue of whether the "streamlining" procedure of 8 C.F.R. § 3.1(a)(7) violates due
process and fails to conform with principles of administrative law is presently before an
en banc panel of this Court in Dia v. Ashcroft, No. 02-2460 (3d Cir. reargued en banc
May 28, 2003). However, because Fatunmbi does not challenge the streamlining
procedure, we need not address this issue in the present appeal.

                                              3
       The transitional rules of the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”) apply here,3 and they provide that “there shall be no appeal

of any discretionary decision” under INA § 244. See Section 309(c)(4)(E) of the Illegal

Immigration Reform and Immigrant Responsibility Act. However, several courts of

appeals have either found, or indicated that they would find, jurisdiction if the alien was

found to lack good moral character under one of the enumerated, or “per se,” categories

of INA § 101(f), 8 U.S.C. § 1101(f)(1)-(8). See Bernal-Vallejo v. Immigration &

Naturalization Serv., 195 F.3d 56, 61-62 (1 st Cir. 1999); Kalaw v. Immigration &

Naturalization Serv., 133 F.3d 1147, 1151 (9 th Cir. 1997). See also Ikenokwalu-White v.

Immigration & Naturalization Serv., 316 F.3d 798, 803 (8 th Cir. 2003); Omagah v.

Ashcroft, 288 F.3d 254, 259 & n.7 (5 th Cir. 2002). We agree that determination of per se

ineligibility under INA § 101(f)(1)-(8) is not a discretionary matter, and thus direct

judicial review is available pursuant to 8 U.S.C. § 1105a(a) (repealed) under the

transitional rules. Id.

       The government has argued that no per se category of INA § 101(f) is implicated

here, but we are unpersuaded, without further clarification and an explanation, that we

lack jurisdiction on this basis. One of the enumerated categories, section 101(f)(6),

provides that no person shall be found to be a person of good moral character who is or




   3
   The BIA’s decision was issued after October 31, 1996, but deportation proceedings
were initiated prior to April 1, 1997.

                                              4
was “one who has given false testimony for the purpose of obtaining any benefits under

this chapter.” 8 U.S.C. § 1101(f)(6). The IJ addressed section 101(f)(6) in the Oral

Decision by specifically referring to this subparagraph, A.R. 114,4 and by referring

several times to its specific language concerning falsehoods for the purpose of obtaining

immigration benefits, A.R. 112, 117. One of those references occurs immediately after

the IJ stated his conclusion that Fatunmbi was not statutorily eligible for suspension of

deportation because he lacked good moral character. 5

          On remand the Immigration Judge should clarify whether his decision that

Fatunmbi was “not statutorily eligible for suspension of deportation because he cannot

demonstrate that he is a person of good moral character,” A.R. 116, was based on a

   4
     The IJ stated: “The statute specifically delineates that which is not good moral
character or that which obviates the finding of good moral character at section 101(f) of
the Act in the definition section number six [which] states that, one who has given false
testimony for the purpose of obtaining any benefits under this act cannot be found to be a
person of good moral character.” A.R. 114 (emphasis added).
   5
       The IJ stated:

                 [T]he Court finds that during the past seven years, of which the statute
                 requires that a showing of good moral character be made, that there have
                 been numerous attempts to present himself to the Immigration Service and
                 to lie and to misrepresent in order to obtain an Immigration benefit,
                 namely attempts to adjust his status. Such willful misrepresentation
                 occurred as recently as February 1995 during an adjustment interview....
                 [T]here have been numerous attempts by the respondent since [1987 or
                 1990] to misrepresent himself and his Immigration history in the
                 United States in order to obtain benefits from the Immigration and
                 Naturalization Service.

A.R. 117 (emphasis added).

                                              5
determination that Fatunmbi was per se ineligible for suspension of deportation under

INA § 101(f)(6) as a person who had given false testimony in order to secure benefits

under the immigration act. 8 U.S.C. § 1101(f)(6). If the decision was not based on a

determination that Fatunmbi was per se ineligible under section 101(f)(6), but was instead

based on the unnumbered paragraph that immediately follows section 101(f)(8), 6 the IJ

should expressly say so, and explain why he did not ultimately base his decision on

section 101(f)(6).7

       The Immigration Judge also should clarify whether he stated a second,

independent basis for his decision, that basis being that Fatunmbi was not entitled to

suspension of deportation as a matter of discretion. The IJ stated: “Therefore, the Court



   6
    The IJ also referred to this unnumbered, or “catch-all” paragraph, stating: “And at the
bottom of the definitional section of good moral turpitude, the Act goes on to state that
the fact that any person is not within any of the foregoing classes, should not preclude a
finding that for other reasons, such person is or was not of good moral character.” A.R.
114 (internal quotations omitted).
   7
    We note that the language of (f)(6) is fairly precise, requiring findings of: (1) “false”
(2) “testimony” (3) given “for the purpose of obtaining benefits” under the chapter.
8 U.S.C. § 1101(f)(6). Given the Supreme Court’s refusal to read a materiality
requirement into this part of the statute, see United States v. Kungys, 485 U.S. 759, 779-
80 (1988), we think its specific terms should be adhered to, and each finding should be
reasoned specifically by the IJ. And, if the ruling was based on the “catchall” provision
with a broader view of “good moral character,” we assume the IJ would take into account
other evidence of character – there seems to have been ample evidence of good character
not related to Fatunmbi’s immigration proceedings that should be considered – and that
the IJ's opinion would discuss such evidence as well. Here, the IJ failed to allude to
consideration of other aspects of Fatunmbi’s life or professional career. On remand, if
the “catchall” provision is relied upon, we would expect such consideration to be evident
from the opinion.

                                             6
cannot find that the respondent either can show good moral character or even if, arguably,

he could show good moral character, that he would be deserving of a discretionary grant

of relief in this case.” A.R. 117 (emphasis added). Although the italicized language in

the quoted sentence is clear enough, we are unwilling at this time to conclude that we lack

jurisdiction over the petition for review because of it. Kalaw, 133 F.3d at 1152 (“[I]f the

Attorney General decides that an alien’s application for suspension of deportation should

not be granted as a matter of discretion in addition to any other grounds asserted, the

BIA’s denial of the alien’s application would be unreviewable under the transitional

rules.”). The statement is not followed by an explanation or any analysis. In addition to

the apparent failure to consider Fatunmbi’s intellectual and social contributions, it strikes

us as inconsistent that the IJ would place so much weight on Fatunmbi’s obvious

importance to his children in the context of the extreme hardship analysis,8 but place none


   8
       The IJ stated:

                 These are young children, they are U.S. citizens, and to deprive them of
                 their parents would be hardship of the most extreme nature, especially in a
                 society where ... all social scientists of every political persuasion are
                 continually insisting that the break-up of the family is the greatest challenge
                 to American society. If the parents were to be deported, the children would
                 be certainly without any support or be forced to enter into some kind of
                 foster home relationship, which would be devastating to their psychological
                 development as well to them economically. As well if they were to be
                 forced to be returned to Nigeria ... the average per capita income in Nigeria
                 is approximately $280 a year [whereas the Fatunmbis earn] $40,000 or more
                 to maintain their family in the United States.

A.R. 115-16.

                                                7
on this factor in support of a favorable exercise of discretion, leading us to question

whether there was a second, independent basis for the IJ’s decision.

       We will remand the record to the Board of Immigration Appeals for a remand to

the Immigration Judge for clarification of the Oral Decision. We will retain jurisdiction

and defer decision on the petition for review.




TO THE CLERK:

              Please file the foregoing opinion.




                                           /s/ Anthony J. Scirica
                                           Chief Judge
