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Osakwe v. Mukasey: IMMIGRATION - inconsistent marriage fraud determinations; remand; dissent

1Attorney General Mukasey is substituted as respondent pursuant to Rule
43(c)(2) of the Federal Rules of Appellate Procedure.
United States Court of Appeals
No. 07-1714
Arthur Ezeakor Osakwe, *
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Michael B. Mukasey1, Attorney *
General of the United States, *
Submitted: January 17, 2008
Filed: July 28, 2008
Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
BRIGHT, Circuit Judge.
Appellant, Arthur Ezeakor Osakwe (Osakwe), petitions for review of an order
of the Board of Immigration Appeals (BIA) denying Osakwes motion to remand
his case for an adjustment of status on the basis of his second marriage to a United
States citizen. We vacate the BIAs order and remand for further proceedings
consistent with this opinion.
On appeal, Osakwe argues that the BIAs denial of his motion for adjustment
of status: (1) violated his Due Process rights; (2) was barred by the law of the case
because the Immigration Judge (IJ) during removal proceedings determined that the
Government failed to establish by clear and convincing evidence that Osakwes first
marriage was fraudulent; and (3) was an abuse of discretion.
We reject Osakwes due process and law-of-the-case arguments. We have
previously held that failure to receive discretionary adjustment-of-status relief does
not constitute the deprivation of a constitutionally-protected liberty interest, and
therefore Osakwe cannot state a claim for violation of due process rights. Guled v.
Mukasey, 515 F.3d 872, 880 (8th Cir. 2008) (quoting Nativi-Gomez v. Ashcroft, 344
F.3d 805, 809 (8th Cir. 2003)). With respect to Osakwes law-of-the-case argument,
Osakwes failure to raise this issue on appeal before the BIA precludes our review at
this stage. See Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir. 2006) (holding that
failure to raise, inter alia, a law-of-the-case argument constituted a failure to exhaust
all administrative remedies under 8 U.S.C. 1252(d)(1), and regardless, where the
administrative proceedings are adversarial and the petitioner was represented by
counsel in the proceedings below, the imposition of a court-imposed exhaustion
requirement is appropriate); Etchu-Njang v. Gonzales, 403 F.3d 577, 581-583 (8th
Cir. 2005) (same).
We nevertheless remand Osakwes petition to the BIA for further proceedings.
The tortured procedural history in this case presents two conflicting determinations
from the same administrative agency. The record presents one determination from the
U.S. Citizenship and Immigration Services (CIS) denying the I-130 petition filed
by Osakwes first wife on the grounds that Osakwes first marriage was a sham,
contracted for the sole purpose of evading immigration laws. Subsequently, the IJ,
during removal proceedings, ruled that the Government failed to establish by clear,
convincing, and unequivocal evidence that the first marriage was fraudulent.
Without resolving or addressing these seemingly conflicting determinations, the BIA
denied Osakwes motion to remand for an adjustment of status on the basis that he is
statutorily ineligible due to the CISs original determination of marriage fraud.
Given the inconsistent rulings with respect to Osakwes first marriage, which
the BIA failed to resolve, the propriety of its conclusion that Osakwe is statutorily
ineligible for adjustment of status due to the CISs original determination of marriage
fraud is called seriously into question. It goes without saying that the CISs
determination of marriage fraud carries great consequences as an alien may be
permanently ineligible to obtain an I-130 visa even if he subsequently enters into a
bona fide marriage with a U.S. citizen. See 8 U.S.C. 1154(c) ([N]o petition shall
be approved if . . . the Attorney General has determined that the alien has attempted
or conspired to enter into a marriage for the purpose of evading the immigration
And so, we cannot rule on the merits of Osakwes petition for review without
obtaining further clarification from the BIA. See Singh v. Gonzales, 495 F.3d 553,
557 (8th Cir. 2007) (Like any other administrative agency, the BIA must describe its
reasoning with such clarity to be understandable.) (quoting SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947)). After all, the BIA is charged with the power to resolve
the questions before it . . . . [and to provide] clear and uniform guidance to the
Service, the immigration judges, and the general public on the proper interpretation
and administration of the Act and its implementing regulations. 8 C.F.R.
1003.1(d)(1)(i) (emphasis added). Therefore, the proper course . . . is to remand to
the agency for additional investigation or explanation. INS v.Ventura, 537 U.S. 12,
16-17 (2002) (per curiam) (internal quotation and citation omitted)
Accordingly, we affirm in part, but remand to the BIA for additional
investigation and clarification regarding the inconsistent marriage fraud
determinations. On remand, the BIA should determine whether additional
proceedings are required to determine whether Osakwes first marriage was
2The majority correctly rejected Osakwe's law-of-the-case argument, as he
failed to raise the issue on appeal before the BIA, and his due process argument.
fraudulent. Such additional proceedings may be necessary to properly adjudicate the
merits of Osakwes claim for adjustment of status.
SMITH, Circuit Judge, dissenting.
As the majority notes, the procedural history in this case has been complex;
however, the record is not contradictory regarding Osakwe's eligibility for adjustment
of status. Both the IJ and BIA stated that Osakwe was not eligible for adjustment of
status based on the May 24, 2001, finding of the Immigration and Naturalization
Service (INS) District Director. Because a remand is unnecessary to clarify whether
Osakwe is eligible for adjustment of status, I respectfully dissent.2
The Immigration and Nationality Act requires that a person seeking adjustment
of status show that he is eligible for a visa, and it also provides that a visa petition will
not be approved if an alien has previously been found to have entered into a marriage
for the purpose of evading the immigration lawswhich is a determination to be
made by the Attorney General. 8 U.S.C. 1255(a)(2) & (3); 8 U.S.C. 1154(c). These
statutes support the BIA's finding that Osakwe is statutorily ineligible for adjustment
of status.
On May 24, 2001, the INS District Director denied Osakwe's visa petition based
on a finding that Osakwe had fraudulently entered into his first marriage for the
purpose of evading immigration law. And on June 25, 2002, the IJ found that Osakwe
was not removable on the ground that he sought to procure a visa by marriage fraud
because the District Director's denial of Osakwe's visa did not constitute clear,
convincing, unequivocal evidence of fraud. When the government seeks to remove an
alien, it has the burden to prove "by clear and convincing evidence that, in the case of
an alien who has been admitted to the United States, the alien is deportable." 8 U.S.C.
1229a(c)(3)(A). In refusing to terminate or continue proceedings, however, the IJ
acknowledged "the INS cannot approve the second visa petition after having
concluded that the first visa petition was based on a fraudulent marriage." The IJ also
recognized that he could not look behind the INS's denial of Osakwe's first visa
Later the BIA affirmed the grounds on which the IJ found Osakwe removable.
The record shows that both the IJ and the BIA who upheld the IJ's decision indicated
that Osakwe is not eligible for a visa and therefore is not eligible for an adjustment of
status due to the INS finding that he had entered a fraudulent marriage. The authority
to adjudicate visa petitions is not the province of the IJ, rather the CIS makes those
decisions. 6 U.S.C. 271(b).
Osakwe's argument that the procedural history presents a conflict requiring
remand conflates removability and eligibility for relief from removability. The burden
when proving removability is on the government. 8 U.S.C. 1229a(c)(3)(A). In
contrast, the burden for relief from removal falls on the alien applying for the relief.
Id. at 1229a(c)(4)(A). Osakwe confuses the different findings of the IJ and the BIA
when he states that the IJ and the BIA held previously that ineligibility for adjustment
has not been established in this case. Both the IJ and the BIA determined that Osakwe
is not eligible for adjustment of status based on the May 24, 2001, finding of the INS
District Director. For that reason, I would deny the petition for review and therefore
respectfully dissent.


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