Ogbudimkpa v. Aschcroft

U.S. Court of Appeals, Third District

The Third U.S. District Court of Appeals has ruled that the federal district courts have jurisdiction to consider claims alleging violations of the United Nations Convention Against Torture.

Christopher Ogbudimkpa, a Nigerian citizen, entered the U.S. in 1982 on a non-immigrant student visa.  In 1985, and immigration judge ordered Ogbudimkpa’s deportation because he had overstayed his visa and had worked without government authorizations.  INS did not immediately remove him.  In 1994, Ogbudimkpa was convicted on state drug charges.  In 1996, he was paroled into INS custody.  In 1999, the Board of Immigration Appeals (BIA) granted Ogbudimkpa’s request to reopen his removal proceedings so he could seek protection under the Convention Against Torture (CAT).  Ogbudimkpa argued that he would be tortured and possibly executed by his extended family members if he returned to Nigeria.  The judge found that Ogbudimkpa had not shown how it was “more likely than not” that he would be tortured.  Ogbudimkpa then filed for an emergency stay of removal, arguing that the Attorney General was mistaken in not granting him relief from removal.

Ogbudimkpa’s habeas corpus petition, which alleged that his removal would violate CAT, was shuffled back and forth between jurisdictions.  The Government moved to dismiss Ogbudimkpa’s case for lack of jurisdiction in the District Court, followed by the Circuit Court.  Finally, the Court of Appeals Circuit Judge held that the provision of the Foreign Affairs Reform and Restructuring Act (FARRA), which limited judicial review of a final order of removal, did not deprive the District Court jurisdiction to review Ogbudimkpa’s habeas corpus petition and that the District Court had jurisdiction to consider whether the BIA misapplied FARRA.

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Hermilo Bravo and Maria Bravo-Rubio v. John Ashcroft, U.S. Attorney General and Anne Estrada, INS District Director

U.S. Court of Appeals, Fifth Circuit

Hermilo Bravo and Maria Bravo-Rubio, husband and wife Mexican citizens, entered the U.S. in 1985.  In 1997, they were placed in deportation proceedings for having entered the U.S. without inspection.  They conceded removability and applied for cancellation of removal under 8 U.S.C.§ 1229b(b)(1).  The immigration judge accepted evidence that the Bravos had been physically present in the U.S. for a continuous period of ten years, were persons of good moral character and had not been convicted of any offenses.  However, the judge also found that the Bravos failed to prove the final requirement of the statute, that their child, a USC, would be subject to “exceptional and extremely unusual hardship” if returned to Mexico.  Due to the child’s age and fluency in Spanish, the judge found that the child would not suffer hardship.  The judge therefore denied the Bravos’ application.  He did accept their application for voluntary departure.

The Bravos appealed to the BIA, which affirmed the judge’s decision.  Citing St. Cyr, 533 U.S. at 308, 121 S.Ct. 2271, the Bravos then filed a habeas corpus petition, which challenged their deportation order.  INS moved to dismiss the petition, arguing that the district had no jurisdiction to review the decision.  The district court agreed with INS and declared that St. Cyr. Did not apply.  The Bravos appealed the denial of their habeas petition to the Fifth Circuit.  They argued that the District Court for the Eastern District of Texas was mistaken when it dismissed the petition for lack of jurisdiction.  The Fifth Circuit affirmed the decision of the district court.