1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 We note that Osilaja originally sought review of the BIA

order in the district court in a habeas action. However, during

the pendency of the appeal from the district court Congress passed

the REAL ID Act, effective March 11, 2005, which abolished habeas

jurisdiction in certain circumstances (including those presented

here)and provided jurisdiction for review in the Circuit Courts.

Consequently, under Rosales v. Bureau of Immigration and Customs

Enforcement, “habeas petitions on appeal as of May 11, 2005, such

as [Osilaja’s], are properly converted into petitions for review.”

426 F.3d 733, 736 (5th Cir. 2005). Thus we treat Osilaja’s appeal

as a timely petition for review of the BIA’s decision. 

United States Court of Appeals

Fifth Circuit

FILED

December 29, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-20047

Summary Calendar

_____________________

KESINGTON OLAJIDE OSILAJA,

Petitioner - Appellant,

versus

ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL; MICHAEL 

CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

Respondents - Appellees.

_________________________________________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

No. A90 969 061

_________________________________________________________________

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:1

Kesington Olagide Osilaja seeks review2 of the order requiring

his removal. He contends that the Board of Immigration Appeals
2

(BIA) wrongfully found him statutorily ineligible for discretionary

relief from deportation under former § 212(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(c). Reviewing the record de

novo and giving deference to the BIA’s permissible

interpretations, see INS v. Aquirre-Aguirre, 526 U.S. 415, 424

(1999), we affirm for the following reasons:

1. Former § 212(c) limits eligibility for discretionary

relief to “aliens lawfully admitted for permanent residence.” See

8 U.S.C. § 1182(c). Where permanent residency status is obtained

by false pretenses the “legally admitted for permanent resident”

requirement of former § 212(c) is not met. See, e.g., Matter of

Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983) (holding that

“[a]dmission is not lawful if it is regular only in form. The term

‘lawfully’ denotes compliance with substantive legal requirements,

not mere procedural regularity.”); Rodriguez v. Ashcroft, 58 Fed.

Appx. 596, 2003 WL 261829 (5th Cir. Jan. 20, 2003); see also Monett

v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986) (citing Longstaff and

finding that Monett was never “lawfully admitted for permanent

residence” and thus failed to meet the requirement of § 212(c)

because he concealed his drug trafficking conviction). 

2. The undisputed facts are that Osilaja was admitted in

1988 for temporary residence, not permanent residence as he

asserts. In 1992 Osilaja applied for and obtained permanent

residency status. However, Osilija obtained this status by
3

concealing his 1990 narcotics convictions. Thus, because the 1992

grant of permanent residency was based on fraud, it fails to

satisfy the “lawfully admitted for permanent resident” requirement

of former § 212(c).

3. Because Osilaga fails to meet the eligibility

requirements for relief under the former § 212(c), the BIA was not

in error in denying Osilaga the relief he requested and,

consequently, the petition for review is

DENIED.