Ify Okafor v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1654
___________
IFY OKAFOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A77 038 400)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 5, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion filed: January 19, 2010)
___________
OPINION
___________
PER CURIAM
Ify Okafor petitions for review of a decision of the Board of Immigration Appeals
denying her motion to reopen the immigration proceedings. We will deny her petition for

-- 1 of 6 --

2
review.
Okafor is a native and citizen of Nigeria. She entered the United States in 1990.
In 2004, the Immigration and Naturalization Service (“INS”) issued a notice to appear
charging that Okafor was removable because she was present in the United States without
having been admitted or paroled. Through counsel, Okafor conceded that she was
removable on this basis.
Okafor applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b) and
adjustment of status to a lawful permanent resident based upon a petition for an alien
relative filed by her husband. The INS had previously denied Okafor’s application for
adjustment of status because she had submitted a fraudulent birth certificate and a
fraudulent affidavit by her father, who had died before the affidavit was purportedly
prepared. Okafor maintained that she should be afforded a waiver under § 212(i) of the
Immigration and Nationality Act, which affords discretionary waivers of inadmissibility
due to fraudulent documentation. In support of her applications, Okafor and her United
States citizen husband, Emmanuel Edobi, testified that Edobi would be unable to care for
their four minor children, who are also United States citizens, if she is removed due to his
medical problems.
The IJ noted that Okafor did not file the application form for a § 212(i) waiver, and
stated that, even if she had filed the requisite form, he would have denied her adjustment
of status application because any equities did not outweigh the fraud she had committed

-- 2 of 6 --

3
in providing false documents. The IJ also concluded that Okafor did not show that her
removal would result in extreme hardship to Edobi, as required by § 212(i). The IJ also
denied Okafor’s application for cancellation of removal because she had not shown the
requisite exceptional and extremely unusual hardship to Edobi or her children. See 8
U.S.C. § 1229b(b)(1)(D). The IJ further stated that Okafor was not worthy of
discretionary relief because she had submitted fraudulent materials to the INS on two
occasions. The IJ also concluded that Okafor had not shown that she is credible. See
A.R. at 92-105.
The BIA dismissed Okafor’s appeal. The BIA was troubled by Okafor’s
submission of a fraudulent birth certificate and an affidavit ostensibly signed by her father
after his death. The BIA agreed with the IJ that Okafor was unworthy of relief as a matter
of discretion and that she did not demonstrate eligibility for the relief she sought. See
A.R. at 88-89.
Represented by new counsel, Okafor filed a petition for review, arguing that the IJ
had erred in stating that hardship to her children was not a consideration in determining
whether to grant a waiver, and that the BIA and IJ had erred in failing to consider certain
factors when adjudicating her applications for adjustment of status and a waiver of
inadmissibility. We dismissed the petition for review because Okafor had not raised these
issues on appeal to the BIA. See Okafor v. Attorney General, C.A. No. 06-4794.
One year after the BIA issued its final administrative decision, Okafor moved the

-- 3 of 6 --

4
BIA to reopen the proceedings, claiming ineffective assistance of her former counsel.
Okafor asserted that counsel had failed to raise in the administrative proceedings the
issues raised in her petition for review, which resulted in its dismissal. Okafor argued
that the 90-day time period for filing a motion to reopen does not apply where an alien
has been prejudiced by counsel’s ineffectiveness.
The BIA concluded that Okafor was not prejudiced by counsel’s alleged
ineffective assistance because the IJ had concluded that Okafor’s fraudulent conduct
precluded a discretionary grant of relief. The BIA also noted that the IJ had found that
Okafor did not show the requisite hardship to qualify for relief. The BIA stated that
Okafor did not articulate any particular error by counsel and primarily argued that the IJ
unfairly balanced the equities of her case. The BIA denied the motion to reopen as
untimely.
Represented by new counsel, Okafor filed the present petition for review. We
must first address the Government’s argument in its brief that Okafor has abandoned any
challenge to the BIA’s decision because she fails to challenge the basis upon which the
BIA denied the motion to reopen – untimeliness. The Government contends that Okafor
has never explained why the motion was not filed within 90 days of the BIA’s dismissal
of her appeal and that she never asserted that she exercised due diligence to warrant
equitably tolling her untimely motion.
The BIA, however, did not deny the motion to reopen as untimely based on a lack

-- 4 of 6 --

In addition, counsel was not ineffective for failing to argue that the IJ should have1
considered hardship to the children in adjudicating the § 212(i) waiver. Children are not
qualifying relatives under the current version of the applicable statute. See 8 U.S.C.
§ 1182(i). Thus, Okafor’s primary claim of deficient performance is without merit.
Although the BIA misstated in its decision that the IJ did consider the children’s hardship
in connection with the waiver application, that error is of no consequence.
5
of due diligence. Okafor argued in her motion to reopen that the 90-day time period for
filing the motion did not apply because she was prejudiced by counsel’s ineffective
assistance. The BIA disagreed, concluding that Okafor was not prejudiced and that the
motion was untimely. In her brief, Okafor disputes this conclusion. Thus, Okafor has not
waived a challenge to the BIA’s decision.
Although she has not waived her challenge to the BIA’s decision, we agree with
the BIA that Okafor has not shown that she was prejudiced by counsel’s alleged
ineffective assistance. Even if counsel had raised the issues presented in Okafor’s first
petition for review to the BIA, the BIA correctly stated that the IJ and BIA had previously
found that Okafor’s fraudulent conduct precluded a discretionary grant of relief and that
she had not shown the requisite hardship to qualify for such relief. Moreover, Okafor1
does not contend that any act or omission by counsel caused her to file the motion to
reopen after the applicable 90-day period expired. See Mahmood v. Gonzales, 427 F.3d
248, 251-52 (3d Cir. 2005) (holding time period for filing a motion to reopen may be
equitably tolled due to ineffective assistance of counsel). Thus, the BIA did not abuse its
discretion in concluding that Okafor’s motion to reopen was untimely under 8 C.F.R.

-- 5 of 6 --

§ 1003.2(c)(2), as it was filed well more than 90 days after the BIA’s final decision.
Accordingly, we will deny the petition for review. The Government’s motion for
summary denial of the petition for review is denied.
6

-- 6 of 6 --