8th US Circuit Court of Appeals rules court lacked jurisdiction in

St. Louis Daily Record & St. Louis Countian, Jul 23, 2004 by Emily Umbright

Looks like its back to Kenya for a man whose marriage was deemed a sham by the Immigration and Naturalization Service.

Last week the 8th U.S. Circuit Court of Appeals determined that a regulation governed by the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 prohibits the appellate court from reviewing discretionary decisions made by an immigration judge.

Since a regulation implementing subchapter II specifies that the power to grant continuances is within the discretion of immigration judges, under IIRIRA courts generally have no jurisdiction to review the exercise of that discretion, Judge Diane E. Murphy wrote for the court last week.

Even if it did have the jurisdiction to review the matter, the evidence supported the finding that the man's marriage sought to evade immigration laws, the appellate court added.

Coming to the United States on a student visa in 1987, Kenya native Charles Osiemo Onyinkwa married Faye Regina Oden, a U.S. citizen, in 1995. After their marriage, Oden filed a visa application on his behalf.

INS's denial of the application in February 1997 triggered a series of declined appeals and motions, including an appeal to the Board of Immigration Appeals in March; an INS application for adjustment in June 1999; and a second visa petition to the INS, accompanied by a continuance request to an immigration judge.

The immigration judge denied Onyinkwa's continuance request, not wanting to step on the toes of the district director's authority over the petition. The district director had already sent notification of his intent to deny the petition.

In April 2003, the board affirmed the immigration judge's decision. On appeal, Onyinkwa argued that the judge should not have denied his request for a continuance.

The IIRIRA provides that no court has jurisdiction to review 'any decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General,' except for granting relief under 8 U.S.C. [Section] 1158(a) (2004), Murphy wrote.

Subchapter II cuts off the court's jurisdiction to review the discretion of an immigration judge, Murphy added, and a continuance falls under an immigration judge's discretion.

Despite this finding, the appellate court continued with its analysis, examining the evidence that Oden and Onyinkwa did not live together and the couple's conflicting testimony regarding their Christmas plans, whether Onyinkwa met Oden's mother, where they met and the number and genders of Oden's children.

In light of the INS notice of intent to deny the second visa petition for these reasons, the IJ was well within her discretion to deny the motion for continuance to allow further proceedings, Murphy concluded, dismissing Onyinkwa's petition.

Judges Gerald W. Heaney and Frank J. Magill concurred with Murphy's opinion.

Charles Osiemo Onyinkwa, petitioner, vs. John D. Ashcroft, Attorney General for the United States of America, respondent; No. 03- 2160; handed down July 15.