U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Airewele, Pius 300 Merchants Drive, Suite 306 Norcross, GA 30093-0000

OHS/ICE Office of Chief Counsel - ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

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Name: ADEYINKA, OLUMIDE GOODNESS

A099-182-755

Date of this notice: 4/15/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Holmes, David 8. Kendall-Clark, Molly Miller, Neil P.

Cite as: Olumide Goodness Adeyinka, A099 182 755 (BIA April 15, 2011)

E.xecutive Office for Immigration Review Falls Church, Virginia 22041

U.S. Department of Justice

Decision ofthe Board ofImmigration Appeals

File: A099 182 755 - Atlanta, GA In re: OLUMIDE GOODNESS ADEYINKA

Date:

APR I & Z011

MOTION ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)( l)(A), I&N Act [8 U.S.C. 1227(a)(l )(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(2)(A)(i)(I), l&N Act [8 U.S.C. l182(a)(2)(A)(i)(I)] - Convicted of crime involving moral turpitude (withdrawn) 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude (not sustained) 237(a)(2)(A)(iii), I&N Act [ 8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined under section 101(a)(43)(R)) (not sustained) 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law (admitted) Pius Airewele, Esquire

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Lodged: Sec.

Sec.

Sec.

APPLICATION: Reconsideration; reopening; stay of removal

The respondent moves the Board pursuant to 8 C.F.R. 1003.2 to reconsider our May 12, 2010, decision. We dismissed the respondent's appeal from the Immigration Judge's decision which found him removable and denied his applications for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U .S.C. l l82(h), and adjustment of status. The Department of Homeland Security has not responded to the respondent's motion. The motion will be denied. We will, however, reconsider on our own motion pursuant to 8 C.F.R. 1003.2(a) and reverse the Immigration Judge's finding of removability on the crime involving moral turpitude ("CIMT") charge. The respondent's motion to reconsider (filed on June 11, 2010) is timely. We find no material factual or legal errors in our May 12, 2010, decision. Matter of0-S-G-, 24 l&N Dec. 56 (BIA 2006). We observed in our May 12, 2010, decision at 2 that the respondent did not contest on appeal his removability or his inadmissibility.
Cite as: Olumide Goodness Adeyinka, A099 182 755 (BIA April 15, 2011)

A099 182 755 I. REMOV ABILITY ON CIMT CHARGE We reconsider sua sponte, however, to clarify the respondent's removability and inadmisibility for adjustment of status purposes. The pertinent facts and history of the case are as follows. The respondent was admitted to the United States as a nonimmigrant visitor with authorization to remain until June 16, 2002 (Notice to Appear). The respondent was convicted on his guilty pleas in a Georgia criminal court on February 20, 2004, of forgery in the second degree, manufacturing a false identification document, and giving a false name.

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On or about April 16, 2007, the respondent filed a habeas corpus petition alleging ineffective assistance of former criminal counsel in not providing him with accurate advice about the meaning of the Georgia First Offender Act, and not fully explaining the terms and conditions of the plea agreement. In November of 2007 the criminal court granted the petition and vacated the respondent's 2004 guilty pleas. The respondent entered a first offender plea to the giving a false name charge. The criminal court deferred proceedings without an adjudication of guilt. The criminal court sentenced the respondent to confinement for 11 months and 29 days, but allowed the sentence to be served on probation, except for having to serve 20 consecutive weekends in jail (record of habeas corpus action). Upon sua sponte reconsideration, we find that the Immigration Judge erred in finding the respondent removable on the CIMT charge. Georgia Code Annotated 16-10-25 (2007) provides, in pertinent part, that the offense of giving a false name to officers is a misdemeanor. Georgia Code Annotated l 7-10-3(a)( l ) and (2) (2007) provide, in pertinent part, that a misdemeanor shall be punished by confinement for a total term not to exceed 12 months. Section 237(a)(2)(A)(i) of the Act, 8 U.S.C. 1227(a)(2)(A)(i), provides, in pertinent part, that an alien convicted of a crime involving moral turpitude (committed within 5 years of admission) is removable if a sentence of 1 year or longer may be imposed. Under Georgia law, a I-year sentence could be imposed, but not a sentence longer than 1 year. The respondent is thus not removable on the CIMT charge. II. INADMISSIBILITY FOR PURPOSES OF ADJUSTMENT OF STATUS However, the respondent remains inadmissible for purposes of adjustment of status. Section 21 2(a)(2)(A)(i)(I) of the Act provides, in pertinent part, that any alien convicted of a crime involving moral turpitude is inadmissible. Section 212(a)(2)(A)(ii)(II) of the Act provides, in pertinent part, an exception if the alien committed only one crime and was not sentenced to a term of imprisorunent in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). The respondent does not qualify for this petty offense exception. The respondent was "sentenced to confinement" for 11 months and 29 days (record of habeas corpus action). It does not matter that the sentence was served on probation with only 20 weekends spent in jail. III. CONSTRUED MOTION TO REOPEN TO REAPPLY FOR SECTION 2 l 2(h) WAIYER OF INADMISSIBILITY We treat the respondent's motion to admit evidence as a motion to reopen proceedings to reapply for a waiver of inadmissibility under section 2 l 2(h) of the Act. The respondent states that his spouse's house was under foreclosure procedures and the family was living there as tenants until 2
Cite as: Olumide Goodness Adeyinka, A099 182 755 (BIA April 15, 2011)

A099 18 2 755 October of 2010 (Motion Exhs. C, F, G). However, the respondent has not to date filed an Alien's Change of Address Form (Form EOIR-33/BIA), and so there is no evidence to indicate that the family is not still living in the respondent's spouse's house. The respondent also submits evidence that his wife, who provided the main financial support for the family, lost her job and benefits on February 27, 2008. This evidence is not new and previously unavailable, however, as the hearing before the Immigration Judge concluded on June 16, 2008. The 2008 University of Lagos article (Motion Exh. J), while noting only one documented Nigerian-based research report on Attention Deficit Hyperactivity Disorder ("ADHD") in children, offers suggestions on how Nigerian schools and parents can help children with ADHD. It thus appears that the respondent's stepchild could receive some individualized education in Nigeria, if he accompanies the respondent there. We find reopening is not warranted. See Matter ofCoelho, 20 I&N Dec. 464 (BIA 1992) (a party who seeks to reopen proceedings to pursue relief bears a heavy burden of proving that if proceedings are reopened, the new evidence would likely change the result in the case). The respondent remains removable on the lodged charge under section 237(a)(l)(B) of the Act. For the reasons discussed above, the motion to reconsider will be denied, we will reconsider sua sponte and reverse the Immigration Judge's finding of removability on the CIMT charge, and the construed motion to reopen will be denied. The respondent's stay request has been rendered moot. Accordingly, the following orders will be entered. ORDER: The motion to reconsider is denied. FURTHER ORDER: We reconsider our May 1 2, 201 0, decision sua sponte. FURTHER ORDER: We reverse the Immigration Judge's finding of removability on the CIMT charge. FURTHER ORDER: The construed motion to reopen is denied.

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THE BOARD

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Cite as: Olumide Goodness Adeyinka, A099 182 755 (BIA April 15, 2011)