Tariq v. Gonzales , 202 F. App'x 698 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-60784
Summary Calendar
MUHAMMAD TARIQ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 565 762
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Muhammad Tariq petitions for review of an order of the Board
of Immigration Appeals (BIA) denying his motion to reopen. Tariq
has abandoned the petition for review from the BIA’s dismissal of
his appeal from the denial of his application for asylum and
withholding of removal.
Tariq contends that the BIA erred by requiring him to
support his motion to reopen with evidence that his application
for labor certification had been approved. He asserts that this
amounted to an improper adjudication of the adjustment of status
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-60784
-2-
issue by the BIA and that the BIA’s failure to reopen the
proceedings and remand the matter to the immigration judge
deprived Tariq of his due process right to seek an adjustment of
status.
The denial of a motion to reopen is reviewed for abuse of
discretion. De Morales v. INS, 116 F.3d 145, 147 (5th Cir.
1997). A successful motion to reopen must establish a prima
facie case of eligibility for the underlying relief sought.
See INS v. Abudu, 485 U.S. 94, 104 (1988).
Pursuant to 8 U.S.C. § 1255(i), an alien physically present
in the United States may apply for an adjustment of status to
become a permanent resident if he is a beneficiary of an
application for a labor certification that was filed before April
30, 2001. The Attorney General may adjust the status of an alien
who has received a labor certification if “(A) the alien is
eligible to receive an immigrant visa and is admissible to the
United States for permanent residence; and (B) an immigrant visa
is immediately available to the alien at the time the application
is filed.” § 1255(i)(2). The filing of a labor certification
does not vest an alien with any right to relief from removal but
is merely one step in the “long and discretionary process” of
obtaining an adjustment of status under § 1255(i). Ahmed v.
Gonzales, 447 F.3d 433 438-39 (5th Cir. 2006).
The BIA did not abuse its discretion in determining that
Tariq had not met his burden to make a prima facie showing that
No. 05-60784
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he was eligible for relief under § 1255(i). Because such relief
is discretionary, Tariq also has failed to show any due process
violation. See Ahmed, 447 F.3d at 440.
The petition for review is DENIED.