Adaobi Stella Obioha v.  ALBERTO R. GONZALES, Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ADAOBI STELLA OBIOHA,
Petitioner,
v. No. 04-2253 
ALBERTO R. GONZALES, Attorney
General,
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A28-955-050)
Argued: September 21, 2005
Decided: December 8, 2005
Before KING and GREGORY, Circuit Judges, and
R. Bryan HARWELL, United States District Judge for the
District of South Carolina, sitting by designation.
Petition for review denied and judgment affirmed by published opin-
ion. Judge Gregory wrote the opinion, in which Judge King and Judge
Harwell joined.
COUNSEL
ARGUED: Jim Tom Haynes, Washington, D.C., for Petitioner.
Michael John Frank, UNITED STATES DEPARTMENT OF JUS-
TICE, Office of Legal Policy, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division,

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M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondent.
OPINION
GREGORY, Circuit Judge:
Adaobi Stella Obioha ("Obioha") challenges the decision of the
Board of Immigration Appeals ("BIA") denying her motion to
remand. Obioha seeks remand so that she can pursue cancellation of
removal as a nonpermanent resident before the Immigration Judge
("IJ"). As an initial matter, we conclude that we possess jurisdiction
to review the denial of Obioha’s motion to remand. Upon examining
the record and the applicable law, we find that the BIA did not abuse
its discretion in denying this motion and that Obioha was not denied
the due process of law. Therefore, we deny her petition for review and
affirm the BIA’s decision.
I.
Obioha was born in Nigeria in 1959. She entered the United States
in 1986 to complete her medical residency at a U.S. hospital. She has
six children, aged 8 to 18, with her former husband and Nigerian citi-
zen, George Udeozor.
In 1987, while still married to Udeozor, Obioha married U.S. citi-
zen Eric Loyd. On several occasions between 1987 and 1991, Obioha
falsely reported to the Immigration and Naturalization Service
("INS") in sworn documents or under penalty of perjury that she had
divorced Udeozor and that she had no children. Based upon these
misrepresentations, the INS upgraded Obioha’s status over time from
an alien to an alien relative, and eventually to a lawful permanent res-
ident. Thereafter, Obioha and Loyd divorced, and she resumed her
marriage to Udeozor, which continued until their divorce in 2003.
The INS discovered Obioha’s fraud in 1999 when she truthfully
declared in an application for naturalization that she had six children.
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On October 12, 1999, the INS commenced removal proceedings
through issuance of a notice to appear. The notice charged that
Obioha was subject to removal for procuring entry or status by fraud
or misrepresentation.
Obioha admitted both the fraud and removability before the IJ. On
January 12, 2000, she applied for cancellation of removal pursuant to
8 U.S.C. § 1229b(a), which requires that the alien be "lawfully admit-
ted for permanent residence." At that time, Obioha could have sought
cancellation of removal as a nonpermanent resident under 8 U.S.C.
§ 1229b(b), but chose not to do so.1 On November 15, 2001, the INS
moved to pretermit Obioha’s application for relief from removal,
arguing that because her continued presence had been achieved
through fraud, she was not "lawfully admitted for permanent resi-
dence." On August 13, 2002, the IJ agreed with the INS’s position
and pretermitted Obioha’s application, granting her voluntary depar-
ture.
Obioha timely appealed the IJ’s decision to the BIA. On January
8, 2003, while Obioha’s appeal was still pending, the BIA decided In
re Koloamatangi, 23 I & N Dec. 548 (BIA 2003), which contained
facts very similar to those of Obioha’s case. In Koloamatangi, the
BIA held that an alien who had procured status as a permanent resi-
dent through fraud could not qualify for cancellation of removal under
8 U.S.C. § 1229b(a). 23 I & N Dec. at 549. Because it appeared that
the alien involved was eligible for cancellation of removal as a non-
permanent resident under 8 U.S.C. § 1229b(b), the BIA remanded his
case to the IJ to consider that relief. Id. at 552.
In light of the Koloamatangi decision, Obioha moved to remand
her case to the IJ so that she likewise could apply for cancellation of
removal as a nonpermanent resident under 8 U.S.C. § 1229b(b). Obio-
1Cancellation of removal is available to nonpermanent residents at the
Attorney General’s discretion if the alien (1) has been physically present
in the United States continuously for at least ten years; (2) has had good
moral character during that time period; (3) has not been convicted of
certain enumerated offenses; and (4) establishes that removal would
result in "exceptional and extremely unusual hardship" to a qualifying
relative. 8 U.S.C. § 1229b(b)(1).
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ha’s one-page motion indicated that Koloamatangi cut off her first
theory of relief, but the motion did not address any of the reasons why
she would be entitled to relief under her new theory. See J.A. 9. The
Department of Homeland Security ("DHS"), successor to the INS,
opposed remand on the basis that Obioha had failed to submit neces-
sary documentation and had not demonstrated prima facie eligibility
for relief in her motion.2 On September 9, 2004, the BIA rendered its
decision on Obioha’s appeal and motion to remand. Citing Koloama-
tangi, it adopted and affirmed the IJ’s decision to deny cancellation
of removal under 8 U.S.C. § 1229b(a). With regard to remand, the
BIA denied Obioha’s request for two reasons. First, the BIA agreed
with the DHS that Obioha’s motion had failed to address prima facie
eligibility, reasoning that "[i]n her motion, the respondent has not
addressed the moral character issue arising from her admitted fraud,
nor has she suggested that hardship might occur to a qualifying rela-
tive." J.A. 2. Second, the BIA found that "respondent had adequate
opportunity to seek such alternative relief below, and she has not pro-
vided us with a persuasive reason why she should be permitted now
to pursue another application." Id. Obioha timely petitioned this Court
to review the denial of the motion to remand.
II.
The threshold issue of this appeal is whether this Court has juris-
diction to review the BIA’s denial of Obioha’s motion to remand. The
Government argues that the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009, has stripped this Court’s ability to review any discre-
tionary decision related to cancellation of removal.3 IIRIRA’s "gate-
keeper provision," codified at 8 U.S.C. § 1252(a)(2)(B)(i), provides
that "no court shall have jurisdiction to review . . . any judgment
2The DHS cited the regulation that provides, "[a] motion to reopen
proceedings for the purpose of submitting an application for relief must
be accompanied by the appropriate application for relief and all support-
ing documentation." 8 C.F.R. § 1003.2(c)(1).
3The Government concedes that we have jurisdiction to review consti-
tutional claims and questions of law under the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, which clarified that such review is
permitted. See 8 U.S.C. § 1252(a)(2)(D).
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regarding the granting of relief under section 1182(h), 1182(i), 1229b
[cancellation of removal], 1229c, or 1255 of this title . . . ." 8 U.S.C.
§ 1252(a)(2)(B)(i).4 Obioha requested remand for the purpose of pur-
suing cancellation of removal under 8 U.S.C. § 1229b(b). The Gov-
ernment argues that because the effect of denying her motion to
remand is to deny her cancellation of removal, the gatekeeper provi-
sion bars review. The Fourth Circuit has not yet addressed the full
extent of section 1252(a)(2)(B)(i)’s limits on jurisdiction.
It is quite clear that the gatekeeper provision bars our jurisdiction
to review a decision of the BIA to actually deny a petition for cancel-
lation of removal or the other enumerated forms of discretionary
relief. See, e.g., Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.
2002); Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003). How-
ever, neither the BIA nor the IJ ever decided Obioha’s request for
cancellation of removal as a nonpermanent resident on the merits —
her request never got that far. Instead, the BIA cut off her ability to
apply for such relief by denying her request to remand. As Obioha
correctly points out, the BIA’s authority over motions to remand
arises from 8 C.F.R. § 1003.2,5 which is not enumerated under the
gatekeeper provision.6
The Government urges us to read 8 U.S.C. § 1252(a)(2)(B)(i)
broadly and find that because the ultimate effect of denying Obioha’s
motion to remand is to preclude her from seeking cancellation of
removal under section 1229b(b), this decision constitutes a "judgment
regarding the granting of relief under section . . . 1229b . . . ." 8
U.S.C. § 1252(a)(2)(B)(i). Although this interpretation is a plausible
4Because deportations commenced after April 1, 1997, we apply the
relevant gatekeeper provision of IIRIRA’s permanent rules (8 U.S.C.
§ 1252(a)(2)(B)(i)), rather than that of IIRIRA’s transitional rules
(IIRIRA § 309(c)(4)(E)). See IIRIRA §§ 309(a), 309(c)(4); Okpa v. INS,
266 F.3d 313, 317 (4th Cir. 2001).
5Section 1003.2(a) provides that "[t]he decision to grant or deny a
motion to reopen or reconsider is within the discretion of the Board . . . ."
6The enumerated provisions instead are: 8 U.S.C. §§ 1182(h) (waiver
of inadmissibility), 1182(i) (waiver of inadmissibility), 1229b (cancella-
tion of removal), 1229c (voluntary departure), and 1255 (adjustment of
status). 8 U.S.C. § 1252(a)(2)(b)(i).
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reading of the language, several principles of statutory construction
counsel us to interpret this jurisdiction-stripping language narrowly.
First, there must be a showing of "‘clear and convincing evidence’ of
a contrary legislative intent" to restrict access to judicial review. Bd.
of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S.
32, 44 (1991) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141
(1967)). In addition, there is a "strong presumption in favor of judicial
review of administrative action." INS v. St. Cyr, 533 U.S. 289, 298
(2001). Finally, courts construe ambiguities in deportation statutes in
favor of the alien. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
See also Iddir v. INS, 301 F.3d 492, 496-97 (7th Cir. 2002) (applying
these principles to the gatekeeper provision). Because the gatekeeper
language is equally susceptible to a more narrow interpretation, bar-
ring review only of merits-based decisions under the enumerated pro-
visions, these principles guide that the narrower reading is
appropriate.
In addition, this circuit gave a narrow reading to the gatekeeper
provision of IIRIRA’s transitional rules. See Stewart v. INS, 181 F.3d
587 (4th Cir. 1999). In Stewart, the court reasoned that the language,
"there shall be no appeal of any discretionary decision under section
. . . 245 [adjustment of status]," did not bar review of a motion to
reopen, even though the purpose of the motion to reopen was to apply
for an adjustment of status. Id. at 594 (quoting IIRIRA
§ 309(c)(4)(E)). The court recognized that a broad interpretation of
the transitional rule could logically bar review of a decision on
reopening. However, the court stated, "we believe the better interpre-
tation of § 309(c)(4)(E) is that it divests courts of jurisdiction only
over BIA decisions that address the merits of an alien’s request for
relief pursuant to those sections." Id. at 595. The court continued, "[a]
reviewing court, therefore, must examine the basis for the BIA’s deci-
sion rather than the end result of the BIA’s decision to determine
whether the decision is ‘under’ a section listed in § 309(c)(4)(E) that
precludes judicial review." Id. (emphasis in original). In Obioha’s
case, this would mean examining the basis for the denial of the
motion to remand, rather than looking to the ultimate effect of pre-
venting cancellation of removal.
Although, as the Government points out, the language of the transi-
tional rules is not identical to that of the permanent rules, we believe
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that the Stewart court’s reasoning continues to apply. The operative
word of both provisions is "under," which the Stewart court focused
on in reading the provision to direct that the "basis for" the BIA’s
decision controlled our ability to review it. Accord Pilica v. Ashcroft,
388 F.3d 941, 947 (6th Cir. 2004) (applying the Stewart construction
to the permanent gatekeeper provision). Furthermore, a natural read-
ing of "regarding the granting of relief" is consistent with the interpre-
tation that it refers to a decision to grant relief on the merits of the
provisions that follow. Therefore, we interpret the gatekeeper provi-
sion’s language to preclude review only where the basis for the dis-
cretionary decision addresses the merits of an enumerated provision.
The other circuits have similarly concluded that 8 U.S.C.
§ 1252(a)(2)(B)(i) bars review only of discretionary decisions on the
merits of the enumerated sections. See Prado v. Reno, 198 F.3d 286,
290-91 (1st Cir. 1999) (gatekeeper provision did not bar review of the
dismissal of a motion to reopen to seek adjustment of status); Medina-
Morales v. Ashcroft, 371 F.3d 520, 527 (9th Cir. 2004) (court could
review denial of a motion to reopen to seek adjustment of status);
Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir. 2004) (permitting
review of a denial of a request for a continuance to seek adjustment
of status); Pilica, 388 F.3d at 948 (court could review a denial of a
motion to remand to apply for an adjustment of status); Guerra-Soto
v. Ashcroft, 397 F.3d 637, 640 (8th Cir. 2005) (allowing review of a
denial of a motion to reopen to seek cancellation of removal);
Manzano-Garcia v. Gonzales, 413 F.3d 462, 468 (5th Cir. 2005)
(court could review denial of a motion to reopen to seek adjustment
of status).
The Government relies on Rodriguez v. Ashcroft, 253 F.3d 797 (5th
Cir. 2001) (per curiam), a Fifth Circuit case decided under the transi-
tional rules, to support its contention that accepting jurisdiction over
the BIA’s denial of Obioha’s motion to remand would be no different
from accepting jurisdiction over the BIA’s decision to deny cancella-
tion of removal. The Rodriguez court held that it could not review a
motion to reopen an application for suspension of deportation. The
BIA had denied the motion because the alien’s new evidence failed
to establish that he would suffer "extreme hardship," as required to
receive suspension of deportation. Id. at 800.
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A close examination of Rodriguez reveals that it does not contra-
dict our holding. Because it was based on the sufficiency of the evi-
dence of extreme hardship, the denial of reopening that the Rodriguez
court was asked to review actually "addressed the ‘merits of an alien’s
request for relief pursuant to’ a provision of the INA established as
discretionary by § 309(c)(4)(E)." Id. (quoting Stewart, 181 F.3d at
595). The Rodriguez court thus recognized the inconsistency of allow-
ing review where the ground for the BIA’s denial was a discretionary
determination denying relief on the merits of the underlying claim. It
held:
It is axiomatic that if we are divested of jurisdiction to
review an original determination by the BIA that an alien
has failed to establish that he would suffer extreme hardship
if deported, we must also be divested of jurisdiction to
review the BIA’s denial of a motion to reopen on the ground
that the alien has still failed to establish such hardship.
Id.
Thus, because the BIA made a discretionary decision on the merits
of an enumerated provision, the fact that it did so through denying a
motion to reopen did not save appellate jurisdiction. Where, however,
the basis for the decision we are asked to review is not the discretion-
ary merits of a section enumerated by the gatekeeper provision,
Rodriguez does not conflict with our holding that we have jurisdiction
to review it.7 Accord Pilica, 388 F.3d at 947-48 (distinguishing Rodri-
guez on this basis).
In the present case, the BIA denied Obioha’s motion to remand on
two distinct bases: (1) Obioha had failed to seek cancellation of
removal as a nonpermanent resident when she had the opportunity to
do so before the IJ, and (2) Obioha failed to present the elements of
7The Fifth Circuit recently found jurisdiction to review the denial of
a motion to reopen to seek adjustment of status based on the ground that
the movant had failed to introduce previously unavailable, material evi-
dence, which is unrelated to the merits. Manzano-Garcia, 413 F.3d at
468. It therefore clarified that it, too, distinguishes between merits-based
decisions and decisions on other grounds.
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prima facie eligibility for cancellation of removal in her motion.8 We
find that we have jurisdiction over both grounds. On the first ground,
the "basis for" denial was Obioha’s procedural failure, which is unre-
lated to the merits of a discretionary decision on cancellation of
removal. The second ground similarly is not based upon the discre-
tionary merits of cancellation of removal. Rather, because Obioha had
failed to address the elements of a prima facie case in her motion
itself, the BIA found it insufficient to demonstrate eligibility and
declined to examine the evidence of prima facie eligibility elsewhere
in the record. The basis for this ground was therefore a deficiency of
the motion to remand, not a discretionary decision on the merits.
If not an abuse of discretion, either one of the BIA’s grounds for
denial would be sufficient on its own to require this Court to affirm
the BIA decision. Because we find, for the reasons discussed below,
that the BIA did not abuse its discretion in denying Obioha’s petition
on the basis that she had an adequate opportunity to pursue relief
below, we do not reach the question of whether the BIA abused its
discretion with respect to its failure to look beyond Obioha’s motion
to remand. Accordingly, we express no opinion as to whether we
would find the BIA’s decision not to consider the evidence of prima
facie eligibility already in the record to be an abuse of discretion.
8The Government seems to assume that the BIA did not find Obioha’s
motion deficient and looked beyond the one-page motion to determine
that the evidence otherwise before it did not establish prima facie eligi-
bility. However, the admittedly brief language of the BIA decision dem-
onstrates that this assumption is incorrect. The BIA states, "In her
motion, the respondent has not addressed the moral character issue aris-
ing from her admitted fraud, nor has she suggested that hardship might
occur to a qualifying relative." J.A. 2 (emphasis added). Moreover, had
the BIA examined the evidence already in the record as the Government
assumes, it would have seen that Obioha did present evidence which "ad-
dressed" moral character (five sworn letters of recommendation, J.A.
220-31) and "suggested" hardship to a qualifying relative (a licensed
clinical social worker’s assessment that extreme and unusual hardship
would beset Obioha’s children, J.A. 131). Finally, this portion of the BIA
opinion indicated its agreement with the DHS, which had argued the
deficiency of Obioha’s motion on several bases, including the motion’s
failure to demonstrate prima facie eligibility. See J.A. 6-7.
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III.
We review the BIA’s decision to deny Obioha’s motion to remand
for an abuse of discretion. See Stewart, 181 F.3d at 595 (citing INS
v. Doherty, 502 U.S. 314, 323 (1992)).
Remand is available in two contexts before the BIA: when an alien
seeks reconsideration of a decision or when an alien seeks to have the
proceedings reopened.9 Although these motions are often treated
interchangeably, a request for reconsideration is based upon "errors of
fact or law in the prior Board decision," 8 C.F.R. § 1003.2(b)(1),
whereas a request to reopen proceedings results from changed cir-
cumstances and specifically contemplates that an alien will do so "for
the purpose of submitting an application for relief," 8 C.F.R.
§ 1003.2(c)(1). Obioha requested remand not so that the IJ could
reevaluate its prior decision under 8 U.S.C. § 1229b(a), but so that she
could pursue a new theory of relief under 8 U.S.C. § 1229b(b). There-
fore, her motion to remand is properly viewed as a motion to reopen.
The regulations regarding a motion to reopen provide, in pertinent
part:
nor shall any motion to reopen for the purpose of affording
the alien an opportunity to apply for any form of discretion-
ary relief be granted if it appears that the alien’s right to
apply for such relief was fully explained to him or her and
an opportunity to apply therefore was afforded at the former
hearing, unless the relief is sought on the basis of circum-
stances that have arisen subsequent to the hearing.
8 C.F.R. § 1003.2(c)(1).
Here, as the BIA noted, Obioha had the opportunity to pursue relief
as a nonpermanent resident under 8 U.S.C. § 1229b(b) as an alterna-
9Motions to remand are mentioned in reference to both: a motion to
reconsider or reopen "that is filed while an appeal is pending before the
BIA, may be deemed a motion to remand for further proceedings before
the Immigration Judge . . . ." 8 C.F.R. § 1003.2(b)(1) (motions to recon-
sider); 8 C.F.R. § 1003.2(c)(4) (motions to reopen).
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tive ground for relief before the IJ. Obioha has never suggested that
the facts relevant to her entitlement to such relief changed. Indeed,
Obioha’s counsel admitted at oral argument that Obioha chose to pur-
sue cancellation of removal only as a lawful permanent resident under
8 U.S.C. § 1229b(a) because lawful permanent residents are subject
to a comparatively easier standard.
Instead, the only "circumstance[ ] that [has] arisen subsequent"
Obioha suggests is the BIA’s Koloamatangi decision, which made
clear that the IJ’s decision was correct. Obioha, however, can point
to no authority that would require the BIA to reopen proceedings
when an alien wishes to pursue a new legal theory after it becomes
clear that the first one will not succeed.10 To the contrary, the
Supreme Court has noted that "[Section 1003.2] is framed negatively;
it directs the Board not to reopen unless certain showings are made.
It does not affirmatively require the Board to reopen the proceedings
under any particular condition." INS v. Abudu, 485 U.S. 94, 105
(1988) (quoting INS v. Jong Ha Wang, 450 U.S. 139, 144 n.5 (1981)).
Therefore, where the regulations direct that reopening should not be
granted when an alien has neglected her opportunity to pursue relief,
it is not unreasonable for the BIA to deny reopening where the only
change in the circumstances is intervening adverse precedent.
Obioha also argues that because the BIA chose to reopen proceed-
ings in the similar Koloamatangi situation, it was an abuse of discre-
tion not to do the same for her. This argument fails to account for the
discretionary nature of the decision to reopen a case. "If INS discre-
tion is to mean anything, it must be that the INS has some latitude in
deciding when to reopen a case. The INS should have the right to be
restrictive." Abudu, 485 U.S. at 108 (quoting Jong Ha Wong, 450
U.S. at 144 n.5). Because the BIA exercised its discretion to grant
10Nor did Koloamatangi represent a change in the applicable law. The
BIA noted in that opinion that its holding was fully consistent with BIA
precedent on the meaning of "lawfully admitted for permanent resi-
dence." 23 I & N Dec. at 549-50. Moreover, the case that Obioha relied
on to hold to the contrary interpreted a different provision in which "has
previously been admitted," rather than "lawfully admitted" was the oper-
ative phrase. In re Ayala, 22 I & N Dec. 398, 401-02 (BIA 1998). See
also Koloamatangi, 23 I & N Dec. at 551 & n.4 (distinguishing Ayala).
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reopening in one situation does not mean, ipso facto, that the BIA
must make the same discretionary allowance here.
Therefore, because Obioha chose to forgo her first opportunity to
seek 1229b(b) cancellation of removal, we cannot say that it was arbi-
trary or unreasonable for the BIA to decline to give her a second
chance. Accordingly, we find that the BIA did not abuse its discretion
in denying Obioha’s motion to remand.
IV.
Obioha also suggests that the denial of her motion to remand vio-
lated her due process rights. The gatekeeper provision explicitly pre-
serves our jurisdiction to review constitutional claims. See 8 U.S.C.
§ 1252(a)(2)(D). A claim that the BIA denied an alien due process is
reviewed de novo. Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002).
Obioha argues that because no court evaluated her request for can-
cellation of removal as a nonpermanent resident on the merits and
because the BIA provided improper grounds for denying her motion
to remand, she was denied due process. Obioha, however, did have
the opportunity to seek cancellation of removal as a nonpermanent
resident, which she chose not to pursue. Furthermore, an alien does
not have a legal entitlement to discretionary relief. See Smith v. Ash-
croft, 295 F.3d 425, 429-30 (4th Cir. 2002) (because alien had no
legal entitlement to discretionary relief, due process was not violated).
Allowing Obioha a second opportunity to seek this relief was solely
within the discretion of the BIA, which, as we have already deter-
mined, it did not abuse. We therefore cannot say that the BIA’s deci-
sion denied Obioha the due process of the law.
V.
Because Obioha failed to seek cancellation of removal as a nonper-
manent resident when she had the opportunity to do so before the IJ,
she has failed to show that the BIA either abused its discretion in
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denying her motion to remand or denied her the due process of law.
Accordingly, we deny the petition for review and affirm the BIA’s
decision.
PETITION FOR REVIEW DENIED
AND JUDGMENT AFFIRMED
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