Charles Chukwumeze Eleri, AKA Charles C. Eleri, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A044-843-028
and Submitted December 8, 2016 Pasadena, California
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
Before: Jacqueline H. Nguyen and John B. Owens, Circuit
Judges, and Edward R. Korman, [*] District Judge.
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.
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.
KORMAN, District Judge:
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).
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.
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).
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 ...