Adeoye v. Gonzales ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1203
OYEBANJI MORONFOLU ADEOYE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A93-003-052)
Argued: November 29, 2005 Decided: January 4, 2006
Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Petition dismissed by unpublished per curiam opinion.
ARGUED: Joseph M. Kum, AMITY, KUM & SULEMAN, P.A., Greenbelt,
Maryland, for Petitioner. Song E. Park, U. S. DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Civil Division,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, M. Jocelyn Lopez
Wright, Assistant Director, Office of Immigration Litigation, U. S.
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oyebanji Moronfolu Adeoye seeks review of an order of the
Board of Immigration Appeals (the Board) denying his motion to
reconsider the earlier denial of a motion to reopen Adeoye’s
removal proceedings. Because we lack jurisdiction to consider
Adeoye’s claims, we dismiss the petition for review.
I.
Adeoye, a native and citizen of Nigeria, was admitted to the
United States in 1983 as a nonimmigrant student. In 1993, Adeoye
was convicted of theft in Maryland and sentenced to an 18-month
suspended prison term. In 2002, an immigration judge determined
that Adeoye was removable because, inter alia, he had been
convicted of an aggravated felony after being admitted to the
United States, see 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999); the
immigration judge ordered Adeoye removed to Nigeria. Adeoye
appealed the immigration judge’s decision to the Board; while that
appeal was pending, Adeoye moved to remand in order to apply for
adjustment of status based on his marriage to a United States
citizen. The Board dismissed Adeoye’s appeal; further, the Board
denied Adeoye’s motion to remand, in part because he had failed to
submit with the motion an application for adjustment of status or
an application for waiver of inadmissibility. See 8 C.F.R.
§ 1003.2(c)(1) (2005) (“A motion to reopen proceedings for the
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purpose of submitting an application for relief must be accompanied
by the appropriate application for relief and all supporting
documentation.”).
Adeoye subsequently moved the Board to reopen his removal
proceedings, again seeking a remand to allow him to apply for
adjustment of status. Because Adeoye listed the wrong agency
number on that motion, however, the motion was misfiled. Upon
discovering this error, Adeoye refiled his motion to reopen, but
the Board denied the motion as untimely. Adeoye moved the Board to
reconsider that decision, explaining the original filing error.
The Board granted Adeoye’s motion to reconsider its untimeliness
ruling, but nonetheless denied the motion to reopen because Adeoye
had failed to submit an application for waiver of inadmissibility--
a document necessary to establish Adeoye’s prima facie eligibility
for the relief he sought. See id.Adeoye then moved the Board to reconsider the denial of his
motion to reopen, submitting along with the motion to reconsider an
application for waiver of inadmissibility. The Board denied the
motion, ruling that (1) it was procedurally barred and
(2) reconsideration was not warranted because Adeoye had not shown
that the Board had erred in denying his motion to reopen for
failure to file an application for waiver of inadmissibility, and
Adeoye’s later filing of such an application did not “cure [the]
defect in his earlier motion,” J.A. 4.
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II.
Adeoye claims that the Board abused its discretion by denying
his motion to reconsider the earlier decision denying his motion to
reopen for failure to file an application for waiver of
inadmissibility. See Yanez-Popp v. INS, 998 F.2d 231, 234 (4th
Cir. 1993) (stating standard of review). The Government argues,
however, that we lack jurisdiction to consider this claim. We
agree.
The statute governing judicial review of removal orders
provides that “no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of
having committed a criminal offense covered in section ...
1227(a)(2)(A)(iii).” 8 U.S.C.A. § 1252(a)(2)(C) (West 1999).
However, a recently enacted provision creates a limited exception
to this jurisdictional bar: “Nothing in [§ 1252(a)(2)(C) or any
similar provision restricting judicial review] shall be construed
as precluding review of constitutional claims or questions of law”
raised in a petition for review. 8 U.S.C.A. § 1252(a)(2)(D)
(Westlaw 2005).
Here, Adeoye essentially argues that he demonstrated prima
facie eligibility for the relief he sought--adjustment of status
based on marriage--and therefore the refusal by the Board to
reconsider its decision denying reopening based on his failure to
submit an application for waiver of inadmissibility was overly
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strict. This claim, however, does not present constitutional or
other legal issues but instead challenges the exercise by the Board
of its discretionary authority. See 8 C.F.R. § 1003.2(a) (2005)
(“The decision to grant or deny a motion to reopen or reconsider is
within the discretion of the Board.”); see also Ghosh v. Att’y
Gen., 629 F.2d 987, 989 (4th Cir. 1980) (“It is not an abuse of
discretion to deny a motion to reopen deportation proceedings when
the motion is not supported by proper affidavits or other
evidentiary material.”). We thus lack jurisdiction over Adeoye’s
petition for review.*
III.
For the reasons set forth above, we dismiss Adeoye’s petition
for review for lack of jurisdiction.
PETITION DISMISSED
*
Adeoye contends that 8 C.F.R. § 1003.2(c)(1) is vague and
produces arbitrary results. Although this claim arguably may fall
within the exception permitting review of constitutional and other
legal questions, Adeoye concedes that he did not raise this claim
before the Board. Thus, we cannot consider it. See Stewart v.
INS, 181 F.3d 587, 595-96 (4th Cir. 1999). And, even if we could
consider this claim, we would conclude that it lacks merit.
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