2003 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
10-28-2003 

# F atunmbi v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-2887

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2003

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it a t ion

" F a tunmb i v

. Att y Ge n U SA" (2003). 2003 D e cisio n s . P ape r 185. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2003/185NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 02-2887
HA FEE Z O . FAT UN MB I,

Petitioner

v. ATTORNE Y GENERAL U. S. A.
On Petiti on for Review of an Order of t he Bo ard o f Imm igration Ap peals (BIA No. A27-112-273)
Argued July31, 2003 Be for e: S CIR ICA , Chief Judge , RE ND EL L a nd A M BR O, Circu it Judges (Fil ed October 28, 2003)


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

AMS, ESQUIRE ( ARGUED) MICHAEL P. LINDEMANN, ESQUIRE DOUGLAS E. GINSBURG, ESQUIRE TERRI J. SCADRON, ESQUI RE JOHN M. McADAMS, J R., ESQUIRE United States Departm

ent of Justice Office of Im

migra tion Liti gation2



### P.O. Box 878, Ben Fr

anklin Sta

tion Washingt on, D.C. 20044 Attorneys for Responde

nt

OPINI ON OF THE COURT
SC IRI CA , Chief Judge
. Petitioner Hafeez Fat

unmbi, a native and ci tize n of Nigeria , came to t he United States in August 1981 on a st udent vis a. Foll owing his ar rivalhe marrie d, had three childre n, all of wh om are U nited S tates citize ns, an d earn ed a d octora l degre e in analy tica l chemist

ry . On March 24, 1997, t he Immigration and Natura lization Service charged hi m with being deportable under section 241(a) (1)(B) of the Immigr ation a nd Na tion ality A ct (“I NA ”), 8 U.S .C. § 125 1(a )(1)( B), a s so me one wh o ov ersta yed h is vis a. His wife was charged as deportabl e under the same provis ion as someone who ente red the Un ited S tates wit hou t insp ectio n. Fat unm bi an d hi s wi fe ap pl ie d f orsu sp en si on o f d ep or ta ti on u nde r f or mer INA § 244 (a)(1), w hich p rovid ed fo r the A ttorney G enera l, in the ex ercise o f discr etion, to suspend deport ation i f: (1) the indi vidual ha s been phy sical ly present in the United State s for seven years; ( 2) the individual has been a person of good moral character during those
seve n years; an d (3) d epor tation w ould result in e xtrem e hard ship to a spo use o r child wh o is e ither a citiz en o r a law ful p erm ane nt re side nt. 8 U.S .C. § 125 4(a )(1) ( rep eale d). Even if thes e factor s were met the AttorneyGeneral coul d sti ll exe rcis e discr etion to deny1 Mrs. Fatunmbi was found t o have sati sfied al l thr ee requi rements and was gr anted

su sp en si on o f d ep or tati on. She is not a p ar ty to th e p et it

io n f orre vi ew. 2 The issue of whether the " stre amlini ng" procedur e of 8 C.F .R. § 3.1(a) (7) vi olate s due process a nd fail s to conform with principles of admi nist rati ve law is pr esentl y befor e an en banc panel of t

his Court in Dia v. Ashcroft , No. 02-2460 ( 3d Cir. reargued en banc May 28, 2003). However, because Fat unmbi does not cha llenge the st reamli ning proc edur e, we need not ad dress th is issue in the pre sent ap peal. 3 sus pen sion of d epo rtatio n. See So Chun Chung v. U.S. Immigration & Naturali zati on Serv. , 602 F.2d 608, 611 (3d Cir. 197 9). On June 5, 1998, a Phi ladel phia Immigr ation J udge (“IJ ”) deci ded that Fatunmbi had sati sfied t

he phys ical presence a nd extreme har dship re quirement s, but he denied
re lie f a nyw ay. 1 The Board of Immigration Appeals ( “BIA”) affirmed the IJ’ s Oral Decision wit

hout opini on on June 10, 2002 pur suant t o 8 C.F .R. § 3.1 (a)(7 ). Fatunmbi timel y petiti oned for revi ew, and the government has argue d that we do not have juri sdiction, c ontending t hat the IJ’s Oral Decisi on is di scretionaryand unrevie wable. We will remand the record t o the Board of I mmigrati on Appeals, and a sk the Board to remand t

he record t o the Immigr ation J udge for cl arifi cati on of the basi s, or base s, of the Ora l Dec ision. T he IJ’s decisio n is the f inal ag ency ac tion w hen a case is stre amlined, 8 C.F .R. § 3.1(a) (7)(i ii) , and we are unabl e to concl usivel y det ermine our jurisdiction, or lack thereof , without kn owing the exact ba sis of it. “If the BIA streamlines a ca se ... the regulatory scheme g ives us a gree n light to scrutinize the IJ’s decisi on as we would a decisi on by the BIA itsel f.” See Falcon Carri che v. Ashcroft , 335 F.3d 10 09, 1018 (9 th Cir. 2003 ). 23 The BIA’s decisi on was issued af ter Octobe r 31, 1996, but deport ation pr oceedings were init iate d prior

to April 1, 1997. 4 The transi tionalrules of the Il legal Immigrat ion Reform and Immigrant Responsibi lit

y Act ( “IIRIRA”) apply here, 3 and theyprovide t hat “there shal l be no appeal of a ny dis creti ona ry dec ision ” un der IN A § 244
. See Section 309( c)(4) (E) of the Ill egal Immigrat ion Reform and Immigrant Responsibi lit

y Act. However, severalcourts of appeals ha ve either found, or indicated that they

would find, j urisdi ction i f the al ien was found to la ck good moral char acter under one of the enumerated, or “per s e,” categories of I NA § 10 1(f ), 8 U .S.C . § 11 01( f)(1 )-(8)
. See Bernal-Val lejo v. Immigrat ion & Naturali zati on Serv. , 195 F.3d 56, 61-62 (1 st Cir. 19 99); Kalaw v. Immigration & Naturali zati on Serv. , 133 F.3d 1147, 11 51 (9 th Cir . 199 7). See also Ikenokwalu-Whit e v. Immigrat ion & Naturali zati on Serv. , 316 F.3d 798, 803 (8 th Cir. 20 03); Omagah v. Ashcroft , 288 F.3d 254, 259 & n .7 (5 th Cir. 2002). We agree that determination of per se ineli gibil ity

under INA § 101(f)(1) -(8) i s not a di scretionarymatter , and thus dire ct judici al revi ew is avail able purs uant to 8 U. S.C. § 1105a(a ) (re pealed) under the tran sition al ru les. Id. The government has ar gued that no per se category of INA § 101(f) is i mplicat ed he re , b utwe a re unp er su ad ed , w it hou t f ur th ercl ar if

ic at io n a nd a n e xpl an at io n, th at we lack jurisdiction on this b asis. One o f the enum erated catego ries, section 101(f)(6), provides that no pe rson shal l be found t o be a person of good mora l chara cter who is or4 The IJ st ated: “The statute speci fical ly deline ates t hat which i s not good moral charact er or that which obvi ates t he findi ng of good moral char acter at sect ion 101(f) of the Act i n the defi niti on sectio n nu mb er six [which] states that, one who has given false testimony for

the purpos e of obtai ning any benefit s under this act cannot be found t o be a person o f good moral ch aracter.” A.R . 114 (em phasis add ed).
5 The IJ st ated:

[T]h e Co urt find s that du ring the past se ven yea rs, of w hich th e statute requir es that

a showing of good moral c haract er be made, t hat the re have been numerous attempts t o present himself to the Immigr ation Service and to lie an d to m isrep resen t in or der t o ob tain a n Im mig ration ben efit , namely atte mpts to adj ust hi s stat us. Such wil lful mi srepre sentation occ urre d as rece ntly as F ebr uar y 199 5 du ring an a dju stm ent in terv iew
.... [T]here have bee n numerous attempts by the res pondent si nce [1987 or 1990] to mis repres ent hi mself and his Immigration hi stor y in the United St ates in orde r to obt ain bene fits fro m the Immigr ati on and Naturalization Service . A.R. 11 7 (emp hasis adde d). 5 was “one who has given fal se tes timonyfor the pur pose of obtai ning any benefit s under this chapter .” 8 U.S. C. § 1101(f)( 6). The IJaddresse d secti on 101(f)( 6) in t he Oral Decision byspecifi call y r eferri ng to thi s subparagr aph, A.R. 114, 4 and by referri ng severaltimes t o its specifi c language conc erning fa lsehoods f or the pur

pose of obtai ning immigration benefi ts, A.R. 112, 117. One of those refe rences occ urs immedia tely after the IJ stat ed his concl usion that Fatunmbi was not statutorily eligible for s uspension of deportation b ecause h e lacked g ood m oral character. 5 On remand the Immigrat ion Judge shoul d clari fy whether his deci sion that Fatunmbi was “not s tatutoril y el igibl e for suspe nsion of deportati on because he cannot demonstrate that

he is a per son of good moral characte r,” A.R. 116, was based on a6 The IJ als o referr ed to thi s unnumbered, or “catch- all” paragraph, stating: “And at the bottom of the defini tionalsecti on of good moral turpit ude, the Act goes on to s tate that the fact that a ny per son is not

within any

of the fore going cla sses, should not preclude a fi ndi ng that

for ot her re as ons , s uch per son is orwas n otof g ood mor al chara ct er .” A.R. 114 (internal q uotations om itted).
7 

### We note that the language of (f)(6) is fairl y precise, requiring findings of: (1) “false” (2) “testimony” (3) given “f or the purp ose of ob taining ben efits” under th e chapter. 8 U.S.C. § 1101(f )(6). Given th e Supreme Cou rt’s refusal to read a materiality requirement into th is part of the statu te, see Un it ed St at es v. Ku ng ys , 485 U.S. 759, 779- 80 (1988), we t

hink its specific

term s should be a

dhered to, and each finding should be reasoned specifi cally

by t he IJ. And, if the ruling was bas ed on the “c atchall” provis ion with a broa

der view of “ good moral

character,”we assum

e the IJ would take into account other evidence of character – there seems to have been am

ple evidence of good character not related to Fatunmbi’s immigrat ion proceedings that should be considered – and that the IJ's opinio n would discuss such ev idence as well. H ere, the IJ failed to allude to consideration of other asp ects of Fatun mbi’s life or prof essional career. On remand, if the “ca tchall ” provisi on is relied upon, we would expect s uch conside ration t o be evident from the opinion. 6 determi nation t

hat Fatunmbi was per se i neligible for s uspension of deportat ion under INA § 10 1(f)(6 ) as a p erson wh o had given false te stimo ny in ord er to se cure b enef its under the immigration act. 8 U.S.C. § 1101(f)(6). I f the decision was notbased on a determi nation t

hat Fatunmbi was per se i neligible under s ecti on 101(f)( 6), but was inste ad based o n the unn umb ered parag raph that imm ediately follows section 1 01(f)(8), 6 the IJ should expr essly

say so, and expl ain why he di d not ultimatel y bas e his deci sion on section 101 (f)(6). 7 The Immigrati on Judge als o should cl arify whether he st ated a se cond, indep ende nt bas is for h is decis ion, tha t basis b eing th at Fatu nm bi w as no t entitled to suspension of dep ortation as a m atter of discretion. Th e IJ stated: “The refore, the C ourt8 The IJ st ated: These are y oung children, they are U.S. ci tize ns, and t o deprive t hem of their parents would be hardshi p of the most e xtreme nat ure, es pecial ly in a society where ... all social scientists of every political persuasion are continua lly

insi sti ng that t

he break-up of t

he familyis the great est chal lenge to A meric an so ciety. If the p arents we re to be depo rted, the childre n w ould be cert ainly

without any

support or

be forced t o enter i nto some kind of foster home relationshi p, which would be devas tati ng to their psy chologic al development as well to t hem economicall y. As well if t hey were t o be force d to b e return ed to N igeria ... the a verag e per c apita in com e in N igeria is approxim ately $280 a year [w hereas the F atunmb is earn] $40,00 0 or mo re to maintain their

family i n the United States. A.R. 115-16. 7 ca nn ot fin d t ha t th e r es po nd en t ei th er ca n s ho w go od m or al c ha ra cte r o r e ve n i f, a rg ua bl y, he c oul d sh ow goo d m ora l cha racte r, that he would be deservi ng of a dis creti onary grant of relief in this case .” A.R . 117 ( emp hasis a dded ). Altho ugh the italicize d lang uage in the quote d sentence is cl ear enough, we are unwill ing at t his time to concl ude that we lack juris dicti on o ver the p etitio n fo r rev iew bec aus e of it. Kalaw , 133 F.3d at 1152 (“[I] f the Atto rney G enera l decid es that a n alien ’s app lication f or sus pens ion o f dep ortation shou ld not be granted as a matt er of dis creti on in addit ion to any

other gr ounds asserted, the BIA’s denial of the al ien’s applic ation would be unreviewabl e under the trans iti onal rules.”). T he state men t is not fo llow ed by an expla nation or an y analysis. In ad dition to the appar ent fai lure t o consider Fatunmbi’s intel lectual and soci al contributions, it s tri kes us as inc onsistent that the I J would place s o much weight on Fatunmbi’ s obvious importance to his childr en in the context of the extreme hardship analy sis, 8 but plac e noneon this factor in support

of a favorabl e exerci se of dis creti on, le ading us t o questi on whether the re was a second, independent basis f or the I J’s deci sion. We will rem and th e reco rd to the Bo ard o f Imm igration Ap peals f or a rem and to the Immigr ation J udge for cl arifi cati on of the Oral Decision. We will ret ain jurisdi ction
an d de fe r d ec is io n on th e p et it io n f orre vi ew.

TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Anthony J. Sciri ca Chief Judge