A Nigerian woman, Adetokunbo Abosede Brooks, faces deportation from the United States after failing to obtain a permanent residence permit after residing in the country for 37 years.
Ms. Brooks found herself in a precarious situation after a decision by the US Court of Appeals for the Fifth Circuit upheld the Agency’s Board of Immigration Appeals (BIA) order. English) for your deportation.
A three-member panel of the court in its decision issued on May 4 on his request for review of the decision of the immigration court and BIA was not substantiated.
Ms. Brooks entered the US legally in 1986 on a six-month visa and three years later had her status adjusted to “conditional permanent resident alien” upon marrying a US citizen.
According to court documents seen by Newslodge, she filed a joint petition with her partner to have the conditions on her permanent residence removed because she is married to a citizen.
Subsequently, she was invited to an interview with the Immigration and Naturalization Service (INS) together with her spouse about the good faith of their marriage.
But in a show of simmering contention between the couple, her husband said during the interview that he did not see or sign the joint petition, and formally withdrew from the joint petition.
Shortly after the incident, the couple filed for divorce.
Ms. Brooks went ahead with her application, however, via a different route.
“He submitted a request for a waiver of the requirement to submit the joint petition for removal of conditions, alleging that he married in “good faith”, indicates the ruling of the Court of Appeals obtained by this newspaper.
However, his application was denied in April 1992 by the INS, which then formally canceled his conditional permanent resident status and began deportation proceedings.
Although Ms. Brooks did not appear at any of the deportation hearings, she was ordered removed in absentia in September 1992.
Twenty-three years later (2015), he filed a motion with the immigration court to reopen his case, which the immigration judge granted, “because he did not receive notice of his original hearing.”
Her case, including the circumstances of her marriage, was heard, the judge issued a decision upholding the deportation charge and upholding the INS’s denial of Ms. Brooks’ request to waive filing of the joint petition.
Not giving up, Ms. Brooks appealed the decision to the BIA, which upheld the immigration judges’ decision in 2022.
She again filed a petition for review of the BIA’s decision with the US Court of Appeals for the Fifth Circuit, arguing that the BIA erred in applying the REAL ID Act’s credibility framework to the re-examination of its relief application because it was filed before the Act’s passage.
Ms. Brooks argued that the provision, which was passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, should not apply retroactively to her final order of deportation of 1992. However, that order is no longer valid. final because the immigration judge granted his petition to reopen and quashed his 1992 deportation order.
The document noted that under US federal law, granting a hardship waiver to an individual who does not file a joint petition for removal of conditional status is reserved at the discretion of the Secretary of Homeland Security. National, so it is not subject to review. by the court of appeals.
“However, federal law does not preclude review of constitutional claims or issues of law raised in a petition for review filed with an appropriate appellate court,” the court said.
In ruling on Ms. Brooks’ petition to review the BIA’s decision, the Court of Appeals noted that a final order of removal can only be reviewed if “the alien has exhausted all administrative remedies available to the alien by law.”
However, “petitioners do not exhaust their administrative remedies on an issue if they do not first raise it with the BIA, either in a direct appeal or in a motion to reopen.”
In her case, Ms. Brooks did not raise this issue with the BIA. She only argued that the REAL ID Act framework for assessing credibility was controlling, the court said.
“Nowhere did it suggest to the BIA that its credibility should have been assessed under pre-REAL ID law, and it concedes on appeal,” the court said.
As a result of Ms. Brooks’ failure to exhaust administrative remedies, the court said that it lacked jurisdiction to consider her appeal for review.
“The petition for review is denied,” the court said. Therefore, the BIA’s decision to remove her from the United States stands.
