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Eleri v. Sessions

United States Court of Appeals, Ninth Circuit

March 24, 2017

Charles Chukwumeze Eleri, AKA Charles C. Eleri, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A044-843-028

          Argued and Submitted December 8, 2016 Pasadena, California

          Joseph LaCome (argued), San Rafael, California, for Petitioner.

          Colette Jabes Winston (argued), Attorney; Janette L. Allen and Kiley Kane, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, Washington, D.C.; for Respondent.

          Before: Jacqueline H. Nguyen and John B. Owens, Circuit Judges, and Edward R. Korman, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel denied Charles Chukwumeze Eleri's petition for review of the Board of Immigration Appeals' decision finding him ineligible for a waiver of inadmissibility under the aggravated felony bar.

         The panel held that because Eleri was admitted to the United States as a conditional permanent resident, he is "an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence." The panel held that Eleri was therefore ineligible for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) because he had an aggravated felony conviction.

          OPINION

          KORMAN, District Judge:

         The issue presented here is whether the Attorney General has the discretion to grant a waiver of inadmissibility to a conditional permanent resident who has been convicted of an aggravated felony as opposed to a lesser offense involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In the latter case, the Attorney General may grant a waiver of inadmissibility if "the alien's denial of admission would result in extreme hardship" to his U.S. citizen spouse. Id. at § 1182(h)(1)(B). Such a waiver is barred, however, if the alien has been convicted of an aggravated felony. Id. at § 1182(h).

         Before turning to the specific facts of this case, we provide a brief overview of the statutory scheme as it applies to conditional permanent residents. Specifically, a conditional permanent resident is an alien admitted to the United States for permanent residence on a conditional basis due to, inter alia, his marriage to a U.S. citizen. See 8 U.S.C. § 1186a(a)(1), (h)(1); see also Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir. 2010). "Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to . . . the privilege of residing permanently in the United States as an immigrant." 8 C.F.R. § 216.1.

         An alien must file a petition to eliminate his conditional status within the 90-days before "the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, " and subsequently attend an interview. 8 U.S.C. § 1186a(c)(1), (d)(2)(A). The petition will be granted, "effective as of the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, " upon a determination that the alien's marriage was entered into lawfully, not annulled or terminated except through death of a spouse, and not entered into for the purpose of procuring his admission. Id. at § 1186a(c)(3)(A)-(B), (d)(1)(A). The two-year conditional period prescribed by these provisions "strikes at the fraudulent marriage by the simple passage of time [because] it is difficult to sustain the appearance of a bona fide marriage over a long period." H.R. Rep. No. 99-906, at 9-10 (1986).

         Against this backdrop, we turn to the facts of this case. On March 21, 1995, Charles Chukwumeze Eleri ("Eleri"), a native and citizen of Nigeria, entered the United States as a conditional permanent resident based on his marriage to his first wife, a U.S. citizen. Eleri's status as a conditional permanent resident was automatically terminated in 1997 due to his failure to file the required petition. 8 C.F.R. § 216.4(a)(6). Removal proceedings were not initiated by the Department of Homeland Security ("DHS") until 2011-fourteen years later. The apparent impetus for these proceedings was Eleri's 2009 conviction for forcible rape of a 19-year-old woman with the mental capacity of a 13-year-old girl. In 2012, Eleri's second wife filed a Form I-130 visa petition on his behalf. Notwithstanding the pending removal proceedings, the DHS granted the visa petition, which is ...


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