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Keywords

jurisdictionburden of prooffelonypiracy
tortjurisdictionfelonyrespondentpiracy

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Unuakhaulu v. Gonzales

Facts

Unuakhaulu, a native and citizen of Nigeria, was admitted to the U.S. as a visitor in 1986 and later convicted of conspiracy to traffic in counterfeit credit cards, serving 18 months in prison. The Immigration Judge (IJ) found him removable based on his aggravated felony conviction and his overstaying his visitor status. Unuakhaulu applied for withholding of removal and relief under CAT, claiming persecution based on his membership in the Ogoni tribe, but provided no corroborating evidence of his claims.

Unuakhaulu was admitted to the United States as a visitor on January 17, 1986. In February 1997, he was convicted of conspiracy to traffic in counterfeit credit cards in violation of 18 U.S.C. 371 and sentenced to 18 months in prison.

Issue

Whether the court had jurisdiction to review the BIA's order of removal and denial of withholding of removal, and whether Unuakhaulu demonstrated eligibility for withholding of removal.

The central question is whether we lack jurisdiction to review his petition where the IJ found that Unuakhaulu was removable based on his aggravated felony conviction, but neither ordered him removed on that basis nor relied on the aggravated felony conviction in denying Unuakhaulu's application for withholding of removal and for relief under CAT.

Rule

Under 8 U.S.C. 1252(a)(2)(C), the court lacks jurisdiction to review orders of removal based on an aggravated felony conviction, but retains jurisdiction to review non-discretionary denials of withholding of removal not predicated on such convictions.

8 U.S.C. 1252(a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually based on a petitioner's prior aggravated felony conviction.

Analysis

The court determined that it had jurisdiction because the IJ did not order Unuakhaulu removed based on his aggravated felony conviction. The IJ found that Unuakhaulu's conviction was not a particularly serious crime and did not predicate her denial of withholding of removal on this conviction. The court then analyzed the merits of Unuakhaulu's claims, concluding that he failed to establish a clear probability of persecution due to his tribal affiliation.

The IJ denied Unuakhaulu's application for withholding of removal and for relief under CAT, and ordered Unuakhaulu removed. The order of removal provided: "It is hereby ordered that the respondent's application for withholding of removal to Nigeria and relief under the Torture Convention be denied."

Conclusion

The court affirmed the IJ's decision, concluding that Unuakhaulu did not meet the burden of proof required for withholding of removal.

We accordingly reject the government's invitation to extend the jurisdiction-stripping provisions to circumstances where they do not apply.

Who won?

The government prevailed in the case because the court upheld the IJ's decision denying Unuakhaulu's application for withholding of removal.

The IJ denied Unuakhaulu's application for withholding of removal and for relief under CAT because Unuakhaulu failed to establish those claims on the merits.

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