We granted the parties’ joint motion to waive oral argument. 

See FED. R. APP. P. 34(f); CIR. R. 34(f). Thus, the appeal is

submitted on the briefs and the record. 

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1260

EMMANUEL E. OBI,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General 

of the United States,

Respondent.

 

Petition for Review of an Order of the

 Board of Immigration Appeals.

No. A28-636-542

 

SUBMITTED FEBRUARY 18, 2009—DECIDED MARCH 3, 2009

 

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

PER CURIAM. Facing removal proceedings, Emmanuel

Obi, a native of Nigeria, applied for cancellation of re-
2 No. 08-1260

moval. The immigration judge concluded that because Obi

had been convicted of marriage fraud in 1996, he was

ineligible for relief under IIRIRA, which did not take effect

until 1997. The Board of Immigration Appeals affirmed,

and Obi petitions for review, arguing as a matter of first

impression that the IJ erred in applying the IIRIRA bar to

a conviction that preceded that law’s effective date. We

deny the petition.

Obi, who is a citizen of Nigeria, entered the United States

on a student visa in 1984. That same year, he married a

United States citizen who filed an I-130 petition on his

behalf. The marriage ended in 1986, and a few weeks later

the Immigration and Naturalization Service denied Obi’s

request to adjust his status based on the marriage, concluding that he had married solely for immigration benefit. In

1988, Obi married a second United States citizen and was

granted permanent residency based on the marriage. This

marriage was also a sham, however, and in 1996 Obi was

found guilty of two counts of visa fraud for using the fake

marriage to stay in the United States. See 18 U.S.C. § 1546.

Obi absconded pending sentencing and, when officials

caught him in 1998, he was convicted of failing to appear

for sentencing as part of the conditions of his release. See

18 U.S.C. § 3146(a)(1). After serving his sentence for all

three charges, Obi (whose second marriage did not survive

his criminal convictions) married a third United States

citizen in 2001. 

Two years later, immigration officials charged Obi with

removability based on his visa-fraud convictions. Obi

conceded that he was removable, but asked that his
No. 08-1260 3

removal be canceled. See 8 U.S.C. § 1229b(a). At a hearing

in March 2004, a government lawyer argued that Obi was

statutorily ineligible for this form of discretionary relief: to

be eligible, Obi had to show that he had been a lawful

permanent resident for five years and had resided continuously in the United States for seven years, and his visafraud convictions terminated his accrual of residency

under the so-called “stop-time rule.” See id. § 1229b(d)(1).

Immigration Judge Craig Zerbe rejected this contention,

however, because at an earlier hearing (one that is

not documented in the record on appeal) a different

government lawyer had agreed that the stop-time rule

applied only to the requirement of a seven-year residency,

not the five-year permanent residency, and that Obi

had therefore accrued enough time under both rules.

Another hearing was scheduled to address Obi’s request

for relief.

In the meantime Immigration and Customs Enforcement detained Obi and lodged three more charges of

removability: 1) that he was inadmissible at the time he

became a permanent resident because he had “procured

his admission by fraud,” see 8 U.S.C. § 1227(a)(1)(A);

2) that he had been convicted of two or more crimes of

moral turpitude, see id. § 1227(a)(2)(A)(ii); and 3) that his

failure-to-appear conviction was an aggravated felony, see

id. § 1227(a)(2)(A)(iii). Obi denied that he was removable

on these additional grounds, and proceeded to hearing

with new counsel before Immigration Judge Robert

Vinikoor.

Judge Vinikoor rejected the government’s additional

theories of removability but concluded nonetheless that
4 No. 08-1260

Obi remained removable under 8 U.S.C. § 1227(a)(3)(B)(iii)

based on the visa-fraud convictions alone. The IJ next

dismissed Obi’s argument that the government had

“stipulated” he was statutorily eligible for relief, noting

that there was no record of any such agreement and that

even if there was, it could not override the statutory

requirements. Since Obi had obtained his permanent

residency by fraud, he was statutorily ineligible for cancellation of removal for permanent residents. The IJ noted,

however, that Obi could apply for a different kind of

cancellation ofremovalreserved for certain nonpermanent

residents. See 8 U.S.C. § 1229b(b)(1). 

At a final hearing, Obi pursued that relief. The IJ concluded that, under a statutory provision enacted as part of

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Obi’s visa-fraud conviction disqualified

him for cancellation of removal for certain nonpermanent

residents. See 8 U.S.C. §§ 1229b(b)(1)(C), 1227(a)(3)(B)(iii).

Obi responded that his conviction should not count against

him because it preceded IIRIRA (he was convicted on April

10, 1996, nearly one year before IIRIRA took effect on April

1, 1997) and would give that law an “impermissibly

retroactive effect.” The IJ rejected the argument, however,

because although Obi’s conviction preceded IIRIRA’s

effective date, his removal proceedings (which began in

2003) did not. And, continued the IJ, IIRIRA applied to

all removal proceedings initiated after the law’s effective

date. The IJ therefore ordered Obi removed, and the BIA

affirmed.

Obi now appeals to this court, but before we can reach

the merits of his arguments we must first confirm that we
No. 08-1260 5

have jurisdiction to hear his case. Congress has excluded

from our jurisdiction denials of discretionary relief,

including cancellation of removal, unless the petitioner

raises a constitutional claim or a question of law. See

8 U.S.C. § 1252(a)(2)(B), (d); Stepanovic v. Filip, No. 07-3883,

2009 WL 187790, at *3 (7th Cir. Jan. 28, 2009). Obi’s appeal

presents two legal questions, and so we may proceed to the

merits of his case.

Obi first argues that the IJ erred in ruling that the

government was not bound to its “stipulation” that the

stop-time rule did not bar his request for relief. According

to Obi, the IJ should have deemed the stop-time rule

agreement sufficient to establish his statutory eligibility,

even though the record contained no evidence of

the agreement. We are unconvinced. To begin with, Obi

did not meet his burden of submitting evidence of any

stipulation or written agreement that supported his

eligibility for relief. See 8 C.F.R. § 1240.8; Bakarian v.

Mukasey, 541 F.3d 775, 782 (7th Cir. 2008). More importantly, the agreement, as Obi characterizes it, did

not completely resolve the question of his statutory

eligibility because it disposed of only one element Obi

had to prove—namely, that the stop-time rule did not

truncate his accrual of residency. And that ground proved

not to be the basis upon which the IJ ultimately denied

relief. Rather, the IJ correctly ruled that Obi had never

been lawfully admitted as a permanent resident at

the outset. See Mejia-Orellana v. Gonzales, 502 F.3d 13, 16-17

(1st Cir. 2007) (alien ineligible for cancellation of removal

when he had never been lawfully admitted as permanent

resident); In re Koloamatangi, 23 I. & N. Dec. 548, 551
6 No. 08-1260

(BIA 2003) (same). Obi does not challenge that conclusion,

and so even if we concluded that the IJ should have

enforced any such agreement, he would still be ineligible

for relief.

The other question of law that Obi raises is one that we

have not previously addressed: whether the IJ erred in

denying him relief based on a pre-IIRIRA conviction. In

support, Obi relies on the Supreme Court’s decision in

Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994), which

established a two-prong test for assessing whether a law

could be applied retroactively. See id. First, the court must

discern whether Congress intended for the law have to

retroactive impact. Id. If Congress’s intent is clear, that

ends the analysis. But if it is ambiguous, the court moves

to the second prong and determines whether applying the

law injures a party by “impair[ing] rights [he] possessed

when he acted, increas[ing] [his] liability for past conduct,

or impos[ing] new duties with respect to transactions

already completed.” Id. According to Obi, Congress did

not intend for the § 1229b(b)(1)(C) bar to apply to convictions occurring before IIRIRA’s effective date of April 1,

1997, see IIRIRA, Pub. L. No. 104-208, § 309(a), 110 Stat.

3009-625 (1996), and moreover applying the bar in his case

would injure him.

Addressing Landgraf ’s first prong, we have previously

explained in a different context that Congress clearly

intended to apply IIRIRA’s cancellation-of-removal

provisions to all proceedings brought after April 1, 1997,

regardless of when an alien committed a disqualifying

crime. Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).
No. 08-1260 7

Obi maintains that Lara-Ruiz is not controlling here because

the pertinent IIRIRA provision in his case is drafted

differently. The relevant provision in Lara-Ruiz applies a

bar to aliens “convicted of any aggravated felony,”

whereas § 1229b(b)(1)(C), the provision at issue here,

applies to aliens “convicted of an offense under [different

subsections of IIRIRA].” Being convicted “under” IIRIRA,

in Obi’s view, means that one’s conviction had to occur

after IIRIRA’s passage, and therefore only convictions that

occur post-IIRIRA are governed by § 1229b(b)(1)(C). This

argument cannot help Obi. It is illogical to speak of being

convicted of a criminal offense “under” IIRIRA, as it is not

a criminal statute. The statutory sections listed in

§ 1229b(b)(1)(C) merely cross-reference offenses in three

statutes of the criminal code. These criminal statutes,

including the one under which Obi was convicted of visa

fraud, predate IIRIRA. See 18 U.S.C. § 1546 (notes) (dating

visa-fraud statute’s creation to 1948); see also GonzalezGonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004)

(rejecting reading of § 1229b(b)(1)(C) similar to Obi’s). The

distinction Obi proposes does not persuade us that LaraRuiz is inapplicable to his case. 

But even if Congress’s intent regarding § 1229b(b)(1)(C)’s

retroactivity were ambiguous, Obi’s argument would

still fail because he cannot meet Landgraf ’s second

prong—that retroactive application of an ambiguous

statute is impermissible only if it impairs rights that

existed under prior law or increases a party’s

liability for prior acts. Landgraf, 511 U.S. at 280; United

States v. Horta-Garcia, 519 F.3d 658, 661 (7th Cir. 2008). To

satisfy this test, Obi must show that he “affirmatively
8 No. 08-1260

abandoned rights or admitted guilt in reliance on [preIIRIRA law].” Horta-Garcia, 519 F.3d at 661. Obi insists

that the statutory bar “attaches a new legal disability

to [his] prior conduct and takes away . . . one affirmative

defense to being deported,” but he does not explain

what that “new legal disability” is or further develop the

point.

In any event, Obi cannot show that he has been harmed

by his reliance on pre-IIRIRA law. He would have been

removable and ineligible for relief based on his marriage

fraud under the pre-IIRIRA regime, see, e.g., Savoury v.

Att’y Gen., 449 F.3d 1307, 1314 (11th Cir. 2006), and so

IIRIRA did not change the consequences of his criminal act.

(Indeed, Obi concedes that he would have been ineligible

for relief under § 212(c), the predecessor statute to cancellation of removal.) Nor has he pointed to any affirmative

steps he took in reliance on the absence of the

§ 1229b(b)(1)(C) bar, such as pleading guilty or changing

his litigation strategy. See Lara-Ruiz, 941 F.3d at 945. As

such, Obi’s claim resembles a line of cases from other

circuits concluding that retroactivity concerns are not

triggered by application of the stop-time rule to pre-IIRIRA

crimes. See Martinez v. INS, 523 F.3d 365, 374-75 (2d Cir.

2008); Heaven v. Gonzales, 473 F.3d 167, 175-76 (5th Cir.

2006); Pinho v. INS, 249 F.3d 183, 188 (3d Cir. 2001); Tang v.

INS, 223 F.3d 713, 719 (8th Cir. 2000). Those cases concluded that a bar to relief created by IIRIRA could be

applied to conduct preceding that law, because the petitioners had not shown that they detrimentally relied on

pre-IIRIRA law or that IIRIRA changed the legal consequences of a prior act. The same holds true for Obi. We
No. 08-1260 9

therefore hold that § 1229b(b)(1)(C) may be applied

retroactively. 

DENIED.

3-3-09