Abel Osarentine Oviawe, an alien residing in the United States, petitions for review of a final decision of the Board of Immigration Appeals (BIA) denying his motion to reopen deportation proceedings in order to consider his application for adjustment of status. Mr. Oviawe previously had been found deportable for overstaying the time authorized in his visa in violation of 8 U.S.C. § 1251(a)(2) (authorizing deportation of any alien who “is in the United States in violation of any ... law of the United States”). For the reasons set forth in this opinion, we deny the petition for review and affirm the decision of the BIA.
I
Background
Mr. Oviawe is a citizen of Nigeria. On May 25, 1979, he came to the United States on a business visa with an expiration date *1429 of July 10, 1979. He did not depart on that date, nor has he ever left the United States. In June 1982, he married an American citizen. On October 7,1982, Mrs. Oviawe filed a relative immigrant visa petition on Mr. Oviawe’s behalf; at the same time, Mr. Oviawe filed an application for status as a pеrmanent resident. Later that same month, he was indicted for mail fraud in violation of 18 U.S.C. § 1341 and for knowingly and fraudulently claiming to be a United States citizen in violation of 18 U.S. C. § 1001. He pleaded guilty to both offenses and the district court imposed a sentence of five years probation. The sentencing judge recommended, on the authority of 8 U.S.C. § 1251(b)(2), 1 that the Immigration and Naturalization Service (INS) not deport Mr. Oviawe on the basis of these convictions.
On February 22, 1983, the Chicago District of the INS denied Mr. Oviawe’s application for permanent residency. Then, on March 21,1983, the INS sought deportation of Mr. Oviawe on the ground that he had overstayed his 1979 visa. A hearing before an immigration judge followed. At his deportation hearing, Mr. Oviawe admitted that he had overstayed his visa and conceded that he was deportable as a result. The judge found Mr. Oviawe deportable, but permitted him voluntary departure until June 20, 1983. Mr. Oviawe did not appeal this decision to the BIA. Instead, Mr. Oviawe aрplied for an extension of his departure date. The application was denied. Mr. Oviawe did not voluntarily depart by June 20, 1983, and the INS issued a warrant for his deportation. The warrant ordered Mr. Oviawe to surrender himself for deportation on July 12, 1983. He never complied with the order and, instead, now contends that he never received notice of the warrant. In November 1983, Mrs. Oviawe gave birth to a son. Mr. Oviawe ultimately was apprehended by the INS on April 16, 1985. Thereafter, he filed a motion to stay his deportation with the Chicago District of the INS.
On April 22, 1985, in a parallel proceeding to the deportation matter, the INS approved the relative immigrant visa filed by Mrs. Oviawe on October 7, 1982. In effect, this approval permits Mr. Oviawe, if deported, to apply for an immigrant visa at the American Embassy in Lagos, Nigeria. However, on April 24, 1985, the INS denied the motion to stay deportation. On July 3, 1985, Mr. Oviawe filed a motion to reopen the deportation proсeeding in order to permit an adjustment of status to that of a permanent resident. He based his motion upon his marriage, his child, and the approved petition of April 22, 1985. An immigration judge denied the motion. Mr. Oviawe appealed to the BIA. The BIA affirmed the decision of the immigration judge not to reopen the proceedings. Mr. Oviawe now petitions for review of that decision.
II
Opinion of the BIA
In upholding the decision of the immigration judge to deny reopening of Mr. Oviawe’s deportation рroceedings, the BIA held that Mr. Oviawe “has failed to establish that, as a discretionary matter, these proceedings should be reopened. He has failed to make a prima facie showing that his application for adjustment of status would be granted in the exercise of discretion.[ 2 ] Although the respondent’s United *1430 States citizen wife and son are significant equities, they are outweighed by the adverse factors of record.” In re Oviawe, No. A23 133 027 — Chicago, order at 5 (BIA Jan. 21,1987) [hereinafter Order]; R. at 18. The BIA set forth two advеrse factors: First, Mr. Oviawe failed timely to depart the United States; and second, he had been convicted for mail fraud and for knowingly making false statements. 3 The BIA concluded that Mr. Oviawe’s “deliberate flouting of our laws,” id. at 6, precluded him from obtaining the extraordinary relief that he sought.
Ill
Discussion
A. General Standard of Review
We have jurisdiction to review “all final orders of deportation.” 8 U.S.C. § 1105a(a). This authority, with exceptions not applicable here, extends to a denial of a motion to reopen.
Variamparambil v. INS,
The scope of our review is extremely narrow. We rеcently decided that the denial of a motion to reopen will be overturned only if it (1) was made without a *1431 rational explanation, (2) inexplicably departed from established policies, or (3) rested on an impermissible basis such as invidious discrimination against a particular race or group. Achacoso-Sanchez v. INS,779 F.2d 1260 , 1265 (7th Cir.1985). The [BIA’s] decision need only be reasoned, not convincing. Id. at 1266. And although in a motion to reopen an alien must show prima facie eligibility for the relief he seeks, Diaz-Salazar v. INS,700 F.2d 1156 , 1159 (7th Cir.), cert. denied,462 U.S. 1132 ,103 S.Ct. 3112 ,77 L.Ed.2d 1367 (1983), the INS has the discretion to deny a motion to reopen even if the movant has made out a prima facie case.
El-Gharabli v. INS,
Here, as already noted, the BIA relied on two principal grounds for upholding the decision of the immigration judge to deny Mr. Oviawe’s motion to reopen on discretionary grounds: (1) that Mr. Oviawe violated the immigration judge’s order to depart voluntarily; and (2) that he committed criminal acts soon after he arrived in the United States. Order at 6. The BIA’s consideration of thе second issue, the criminal convictions, raises a preliminary question of law — involving statutory construction and a conflict in the courts of appeals — that we must resolve de novo. We turn first to that question.
B. Applicability of Judicial Recommendation Against Deportation
Section 1251(a)(4) of Title 8 of the United States Code provides in relevant part that an alien is to be deported if he is "convicted of a crime involving moral turpitude committed within five years after entry and either sentencеd to confinement or confined therefor in a prison or corrective institution, for a year or more_” 8 U.S.C. § 1251(a)(4). It is not disputed that the crimes of which Mr. Oviawe was convicted involve moral turpitude. Section 1251(b)(2), however, makes § 1251(a)(4) inapplicable “if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported_” 8 U.S.C. § 1251(b)(2).
If the INS had sought deportation under § 1251(a)(4), the district court’s recommendation to the contrary may have operated as a complete bar to such an action.
5
8 U.S.C. § 1251(b)(2);
see Giambanco v. INS,
Two circuits have ruled squarely on this matter and have come to different conclusions.
7
Compare Delgado-Chavez v. INS,
Accordingly, in order (1) to maintain the integrity of the deportation recommendation of the trial judge; (2) to have the discretionary determination made by the actоr best able to make it; and (3) to avoid a possibly unjust penalization of aliens such as Giambanco, we hold that the Service cannot take into account as a matter of discretion under section [1251] Giambanco’s prior fraud conviction in determining whether he is entitled to adjustment of deportation status.
The court in Giambanco maintained that allowing the INS to consider a conviction in adjustment of status proceedings when there is a recommendation against using the conviction as a basis *1433 for deportation renders meaningless the provisions of § 1251(b)(2) which provide for notice and an opportunity for a hearing to the INS. Id. While this argument is not without appeal, the plain language of § 1251(b)(2) limits its application to deportation proceedings under § 1251(a)(lf). Therefore, consideration of Delgado-Chavez’s embezzlement conviction in connectiоn with his application for voluntary departure was not erroneous.
Id. at 870 (emphasis supplied).
We agree with the view of the Ninth Circuit.
8
The plain language of § 1251(b)(2) permits the judicial recommendation to bar deportation only when the deportation is based on § 1251(a)(4) (conviction of a crime of moral turpitude). It does not forbid the consideration of a conviction as an aggravating factor when deportation is based on another statutory provision.
See Jew Ten,
As we already have noted, the INS has great discretion in dealing with a motion to reopen. Furthermore, a motion to adjust the status of an alien is an extraordinary remedy.
Jain v. INS,
Had no criminal action been instituted against the respondent, the fact of his *1434 involvement in the criminal activity could have been brought out and considered in connection with an application for discretionary relief. The court’s ruling in Gi-ambanco places him in a position superi- or to the person who has not been convicted of his crime. Although the fact of his conviction should not preclude him from establishing statutory eligibility for the relief, we are of the opinion that the respondent is neither a person of good moral character nor a person who merits a favorable exercise of discretion.
Gonzalez, 16 I & N Dec. at 136-37; see In re Seda, 17 I & N Dec. 550, 554 (1980) (conviction may be considered as an adverse factor under discretionary review). Accordingly, we hold that the BIA properly considered Mr. Oviawe’s prior criminal convictions of moral turpitude as an adverse factor in exercising its discretion to deny Mr. Oviawe relief.
C. Review of the BIA’s Decision
We now review the final decision of the BIA under the abuse of discretion standard. Mr. Oviawe challenges the BIA’s decision on several grounds. Basically, he contends, the BIA either considered adverse factors erroneously, or failed to consider positive factors in arriving at its determination. We briefly set forth his contentions and then assess their merits.
First, Mr. Oviawe contends that, at his deportation hearing, the INS failed to consider his marriage. However, this matter was not argued before the BIA and is therefore not properly before us now. In any event, it is clear that the BIA was aware of his marriаge to an American. Second, he contends that the BIA erroneously considered a purportedly fraudulent visa petition scheme involving his cousin. As already noted, however, it was the immigration judge who considered the visa petition scheme, see supra note 3, and not the BIA, which merely mentioned that the INS alleged such a scheme. Third, Mr. Oviawe contends that the INS distorted the facts surrounding his convictions for mail fraud and making false statements. Although the BIA did set forth the allegations of the INS in discussing the posture of the case, R. at 15-16, the BIA relied on the language contained in the indictment charging Mr. Oviawe with the crimes to which he pleaded guilty. Id. at 19. Moreover, the BIA’s summary of the INS’ allegations closely track the language of the indictment. Compare R. at 15-16 (BIA’s summary of INS’ contentions) with R. at 128-34 (indictment).
Finally, Mr. Oviawe contends that the INS was guilty of willful misconduct in delaying approval of his relative immigrant visa petition for two and one-half years. The INS has moved to strike this argument and, in the alternative, has moved for leave to respond. In its motion, the INS alleged that Mr. Oviawe did not raise this issue in his oрening brief before this court. However, Mr. Oviawe’s initial brief, while not employing the label “affirmative misconduct,” sets forth the same argument found in his reply brief. Compare Appellant’s Br. at 5-7 with Appellant’s Reply Br. at 9. Accordingly, the motion to strike the argument is denied.
Turning to the merits of Mr. Oviawe’s claim of affirmative misconduct, we find no basis for relief. He relies on two Ninth Circuit cases in which affirmative misconduct by the INS, in the form of inexcusable delay in processing visa petitions, resulted in denial of those petitions.
See Villena v. INS,
Even if the INS arguably was negligent in not acting more expeditiously, ... neither the Government’s conduct nor the harm to the respondent is sufficient to *1435 estop the Government from enforcing the conditions imposed by Congress for residency in this country.
Id.
at 18,
Conclusion
All immigration cases are hard cases because they affect, profoundly, the lives of many. Here, however, it is clear that the BIA acted well within its discretion in refusing to reopen this proceeding. Having reached that conclusion, our task is completed. The petition for review is denied. The order of the Board is affirmed.
It Is So Ordered.
Notes
. Section 1251(b)(2) оf Title 8 of the United States Code provides in relevant part:
(b) The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply ... (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been givеn prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.
8 U.S.C. § 1251(b)(2).
. In
INS v. Abudu,
— U.S. -,
There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought_ Second, the BIA may hold that the movant has *1430 not introduced previously unavailable, material evidence, 8 C.F.R. § 3.2 (1987).... We decide today that the appropriate standard of review of such denials is abuse of discretion. Third, in cases in which the ultimate grant of relief is discretionary ..., the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable explanation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief. We have consistently held that denials on this third ground are subject to an abuse-of-discretion standard.
Id.,
. The immigration judge who denied Mr. Oviawe’s motion to reopen did so on somewhat different grounds. He did not consider the mail fraud or false statement convictions.
In re Oviawe,
No. A23 133 027 — Chicago, decision at 3 (IJ Aug. 27, 1985); R. at 52. Instead, in addition to considering the failure to depart timely, the judge also considered (1) that it was alleged Mr. Oviawe was involved in a fraudulent visa petition concerning his cousin; and (2) that it was alleged Mr. Oviawe had lied about his age before the district court at sentencing for his criminal conviction.
Id.
at 3-4. The judge determined that this evidenced "an alien who is willing to bend and break laws to accomplish his own goals.”
Id.
at 4. Of course, we review the decision of the BIA, not the immigration judge.
See Argueta v. INS,
. In reaffirming the validity of this deferential standard to discretionary decisions of the BIA, the Supreme Court recently held:
“ ‘If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie cаse. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations]] a requirement not disputed in this case].’”
Abudu,
. Although it did not make the argument before the district court at the time of sentencing, the INS now makes passing reference to the possible inapplicability of the judicial recommendation. It notes that Mr. Oviawe was not sentenced to at least one-year confinement — a requirement for deportation under the applicable part of § 1251(a)(4). Appellee’s Br. at 17 n. 15. Yet, it also states that the appellant's reliance on
Giambanco v. INS,
Rule 28(a)(4) of the Federal Rules of Appellate Procedure mandates that an appellant must present in its brief the issues to the appellate court that the appellant desires to litigate. In addition, the issues must be supported by appropriate judicial authority. Id.; see Coffey v. Van Dorn Iron Works,796 F.2d 217 , 220 (7th Cir.1986); Sanchez v. Miller,792 F.2d 694 , 703 (7th Cir.1986), ce rt. denied,479 U.S. 1056 ,107 S.Ct. 933 ,93 L.Ed.2d 984 (1987). "It is not the obligation of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel." Sanchez,792 F.2d at 703 .
Beard v. Whitley County REMC,
. Section 1251(a)(2) of Title 8 of the United States Code states in pertinent part:
(a) Any alien in the United States ... shall, upon the order of the Attorney General, be deported who—
(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of any other law of the United States_"
8 U.S.C. § 1251(a)(2).
. The government contends that there is another case that directly supports its position here:
Jew Ten v. INS,
“The sole Conclusion of Law reached by the Special Inquiry Officer reads:
1. That under Section [1251](a)(13) * * * the [petitioner] is subject to deportation on the ground that prior to or at the time of any entry, he shall have knowingly and for gain encouraged, induced, assisted, abetted оr aided any other alien to enter or try to enter the United States in violation of law.”
Id. at 835 n. 4 (quoting opinion of BIA). Accordingly, there is no indication that the § 1251(a)(4) conviction was considered as an independent adverse factor. Compare id. with In re Oviawe, No. A23 133 027 — Chicago, order at 6 (BIA Jan. 21, 1987) ("More serious than [Mr. Oviawe’s] failure to depart, however, are his 1983 convictions for using the mails in furtherance of a scheme to defraud and for making false statements to a department of the United States.”).
. Another case that supports the
Delgado-Chavez
holding, albeit implicitly, is
United States v. George,
. It is evident from a reading of the district court’s opinion in its entirety that § 1251 (a)(2) merely is a typographical error which should properly read § 1251 (a)(4).