A Nigerian woman, Adetokunbo Abosede Brooks, is facing deportation from the United States following her inability to secure a permanent residence permit after residing in the country for 37 years.
Ms Brooks was thrown into the precarious situation after a decision of the US Court of Appeals, Fifth Circuit, affirmed the order of the Board of Immigration Appeals (BIA) Agency for her deportation.
A three-member panel of the court ruled in its judgement delivered on 4 May that Ms Brooks’ petition for a review of the concurrent decisions of the immigration court and the BIA was not substantiated.
Ms Brooks entered the US in 1986 legally with a six-month visa, and, three years later, had her status adjusted to that of a “conditional permanent resident alien” on getting married to a US citizen.
According to court documents she filed a joint petition with her partner for the removal of the conditions for her permanent residency on the basis of being married to a citizen.
Afterwards, she was invited for an interview with the Immigration and Naturalisation Service (INS) alongside her spouse concerning the bona fides of their marriage.
But in a show of simmering dispute between the couple, her husband said during the interview that he neither saw nor signed the joint petition, and formally withdrew from the joint application.
Shortly after the incident, the couple filed for divorce.
Ms Brooks went ahead with her application, however, through a different route.
“She filed an application for waiver of the requirement to file the joint petition for removal of conditions, claiming that she entered the marriage in “good faith,” the Court of Appeals ruling obtained by this newspaper, stated.
Her request was, however, denied in April 1992 by the INS, which then formally terminated her conditional permanent resident status and commenced deportation proceedings.
Although Ms Brooks did not appear for any of the deportation hearings, she was ordered removed in absentia in September 1992.
Twenty-three years later (2015), she filed a motion with the immigration court to reopen her case, which the immigration judge granted, “because she did not receive notice of her original hearing.”
Her case was heard including the circumstances of her marriage, the judge issued a decision sustaining the charge of deportation and upholding the INS’ denial of Ms Brooks’ request to waive the filing of the joint petition.
Not giving up, Ms Brooks appealed the decision to the BIA which affirmed 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 fresh review of her application for relief because it was filed prior to the passage of the Act.
Ms Brooks argued that the provision, which was passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 should not be applied retroactively to her final order of removal from 1992. However, that order is no longer final as the immigration judge’s granting of her petition to reopen vacated her 1992 order of removal.
The document noted that according to federal law in the US, the granting of a hardship waiver for an individual who fails to submit a joint petition for removal of conditional status is reserved to the discretion of the Secretary of Homeland Security, thus not subject to review by the court of appeals.
“However, federal law does not preclude review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals,” the court said.
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 as of right.”
However, “petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen.”
In her case, Ms Brooks did not raise this issue before the BIA. She only argued that the REAL ID Act’s framework for assessing credibility was controlling, the court said.
“Nowhere did she suggest to the BIA that her credibility should have been assessed under the pre-REAL ID Act framework, and she concedes as much on appeal,” the court said.
As a result of the non-exhaustion of administrative remedies by Ms Brooks, the court said it lacked jurisdiction to consider her appeal for review.
“The petition for review is denied,” the court said. Therefore, the BIA decision to remove her from the US stands.