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Bamidele v. I.N.S.

November 1, 1996

ALADETOHUN O. BAMIDELE,

PETITIONER

v.

IMMIGRATION & NATURALIZATION SERVICE,

RESPONDENT.



Petition for Review of Board of Immigration Appeals

Order dated November 13, 1995 ( Action No. 0313-2: A26 387 101) Argued September 18, 1996

Before: NYGAARD, ROTH and ROSENN, Circuit Judges

ROTH, Circuit Judge\

Opinion Filed November 1, 1996

OPINION OF THE COURT

This appeal comes to us from a final order of deportation issued by the Board of Immigration Appeals. Petitioner Aladetohun Olaniyi Bamidele, a thirty-eight year old native and citizen of Nigeria, asks us to review the decision of the Board ordering him deported because he obtained an adjustment of status pursuant to Section(s) 245(a) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. Section(s) 1255(a), through a sham marriage. Bamidele claims that the Board erred as a matter of law in ordering him deported because the grounds for deportation relate only to his fraudulent adjustment of status. He contends that Immigration and Naturalization Service ("INS") action to rescind that adjustment is barred by the five year statute of limitation contained in Section(s) 246(a) of the Act, 8 U.S.C. Section(s) 1256(a). Because there is no reason to adjust Bamidele's permanent resident status other than the sham marriage which enabled him to obtain permanent resident status under Section(s) 246(a) and because adjustment under Section(s) 246(a) is now barred, we conclude that Bamidele's permanent resident status cannot presently be rescinded. As a result, we find that he is not now deportable on the sole grounds of his misconduct in obtaining his adjustment of status.

I. Facts

Bamidele has lived and worked in this country for over fourteen years since entering the United States as a non-immigrant visitor on February 19, 1982. Shortly after arriving in America, Bamidele took up residence in Philadelphia with his brother Larry, who had previously emigrated to this country. Bamidele then began his college education, eventually earning a Bachelor of Science degree in Management, and supported himself by driving a cab on nights and weekends. Following his graduation in 1986, Bamidele held a variety of jobs until establishing himself with his current employer in 1990. In this position of construction inspector and field technician, Bamidele has earned the praise and respect of his employer who has described him as a "very intelligent, dedicated and self-motivated person" and a "very valuable employee." Bamidele's current troubles with the INS, arise out of his May 19, 1983, marriage to Kim Bonita Griffin, a U.S. citizen. A year later, on April 10, 1984, on the basis of this marriage, Bamidele applied for and was granted an adjustment of status to that of lawful permanent resident pursuant to Section(s) 245(a) of the Act, 8 U.S.C. Section(s) 1255(a). In 1985, however, while participating in a joint FBI/INS investigation of student loan fraud, the FBI inquired into the validity of Bamidele's marriage to Ms. Griffin. *fn1 Ms. Griffin told an FBI agent in an interview that her marriage to Bamidele had been a sham and the two had never lived together. Despite having this information in 1985, the INS took no action for five years. *fn2 Bamidele and Griffin were subsequently divorced on June 17, 1988.

On January 31, 1990, the INS finally acted, serving Bamidele with an Order to Show Cause why he should not be deported. This Order alleged that Bamidele had obtained his "permanent resident status through fraud," thus rendering his "permanent resident status nul [sic] and void." Cert. Admin. Rec. at 39. The Order further charged Bamidele with violating Section(s) 241(a)(2) of the Act in two counts. *fn3 The first count charged Bamidele with being in the United States in violation of law under Section(s) 241(a)(2) of the Act, while the second count charged Bamidele, also under Section(s) 241(a)(2), with committing fraud within the meaning of Section(s) 241(c)(2). A hearing followed at which Bamidele through counsel presented testimony and other evidence that he and Griffin had been in love and intended to make a life together. Bamidele also argued that he was not deportable under a proper reading of Section(s) 241(a)(2) and 241(c)(2). The immigration judge, stating that he found Bamidele's version of events incredible, ordered him deported on both counts as of October 10, 1991.

Bamidele then embarked on a lengthy appeals process. Appearing pro se, he first filed a notice of appeal to the Board of Immigration Appeals in which he reiterated his contentions that his marriage to Griffin was genuine and argued that the immigration judge had erred as a matter of law in his reading of Section(s) 241(a)(2) and 241(c)(2). When Bamidele failed to file a brief with the Board, it affirmed the immigration judge on all bases in a per curiam opinion dated December 4, 1992. The only arguments on which the Board reached the merits were Bamidele's contention that the second charge was invalid because he did not "reenter" the United States within two years of marriage and his assertion that the Board should not have credited Griffin's testimony. The Board summarily rejected both positions in its two page dismissal of Bamidele's appeal. On March 15, 1993, the Board in a second opinion rejected Bamidele's "Motion to Reconsider" which the Board styled as a "Motion to Reopen" the deportation hearings.

Again represented by counsel, Bamidele filed two petitions for review in this Court which were consolidated for purposes of appeal. In an unreported opinion, we ruled that Bamidele was not deportable under 241(c)(2) because any fraud by Bamidele, who at all times relevant to this litigation resided in the United States, *fn4 was committed solely for the purpose of obtaining an adjustment of status and not for the purpose of gaining "entry" to this country. Bamidele v. Immigration and Naturalization Serv., Nos. 93-3098 & 93-3282, 31 F.3d. 1170 (3rd Cir. 1994) (Table). We also remanded for the Board to determine whether Bamidele could be deported solely on the basis of Section(s) 241(a)(2) as stated in the first count of the Order. Additionally, although Bamidele raised before us the question of the effect of the statute of limitations applicable to rescission actions under Section(s) 246(a) of the Act, 8 U.S.C. Section(s) 1256(a), we refused to consider it because we determined that it and several additional issues had not be fully briefed and considered by the Board. *fn5

Upon remand, the Board again affirmed the immigration judge's order of deportation pursuant to Section(s) 241(a)(2) of the Act. *fn6 Bamidele v. Immigration and Naturalization Serv., No. A26 387 101 - Philadelphia (B.I.A. Nov. 13, 1995). The Board first took up the question of whether the running of the five year statute of limitations for rescission of adjustment of status in Section(s) 246(a) of the Act also precluded the initiation of deportation proceedings. Relying on agency adjudications as precedent, the Board held that the five year limitation in no way impeded deportation proceedings after the lapse of the period for rescission. The Board then addressed the question of Bamidele's deportability under Section(s) 241(a)(2) as an alien who is "not presently in possession of a valid immigrant or valid non-immigrant visa or other valid document" by virtue of having obtained his documentation through a sham marriage. On this charge the Board found that Bamidele never qualified for adjustment of status because he was not an "alien lawfully admitted for permanent residence." Section(s) 245(a) of the Act, 8 U.S.C. 1255(a).

II. Jurisdiction

Bamidele has filed a timely appeal for review of a final order of deportation issued by the Board of Immigration Appeals. The Board held appellate jurisdiction over this matter pursuant to 8 C.F.R. 3.1(b)(2). Our jurisdiction to review the Board's order is exclusive and ...


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