Adrian Harper v. Jefferson Sessions, III ( 2018 )

Case: 17-60671 Document: 00514542248 Page: 1 Date Filed: 07/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60671 July 5, 2018
Summary Calendar
Lyle W. Cayce
Clerk
ADRIAN HARPER,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A027 517 587
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Adrian Harper, a native and citizen of Jamaica, petitions this court for
review of the decision by the Board of Immigration Appeals (BIA) that a
favorable exercise of discretion on Harper’s request for cancellation of removal
under 8 U.S.C. § 1229b(a) was not warranted. Harper argues that, in
exercising its discretion, the BIA made erroneous findings concerning his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-60671 Document: 00514542248 Page: 2 Date Filed: 07/05/2018
No. 17-60671
criminal history and failed to consider that he has filed a postconviction
challenge to his Texas conviction for evading arrest with a vehicle.
Because Harper sought cancellation of removal under § 1229b, the
jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B) is implicated. See Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). That section provides that “no
court shall have jurisdiction to review-- (i) any judgment regarding the
granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title.” § 1252(a)(2)(B)(i). The BIA concluded that, under the facts of this case,
Harper did “not merit a favorable exercise of discretion.” This court has no
jurisdiction to review that purely discretionary decision. See § 1252(a)(2)(B)(i);
Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006); Rueda, 380
F.3d at 831.
Section 1252(a)(2)(B)’s jurisdictional bar is subject to § 1252(a)(2)(D),
which provides that “nothing in subparagraph (B) . . . shall be construed as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance
with this section.” Harper argues that this court has jurisdiction because his
procedural due process rights were violated when the Department of
Homeland Security (DHS) failed to serve him with its appeal brief. The record
makes clear that Harper received DHS’s appeal brief, he filed a response to it,
and the BIA considered his response. He fails to state a cognizable due process
claim. See Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006).
Accordingly, Harper’s petition for review is DISMISSED. His motion for
appointment of counsel is DENIED.
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