Mushtaq v. Mukasey , 306 F. App'x 882 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2009
No. 08-60019
Summary Calendar Charles R. Fulbruge III
Clerk
ASAD MUSHTAQ
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A43 968 082
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Asad Mushtaq, a native and citizen of Pakistan, petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing his appeal from the
Immigration Judge’s (IJ) denial of his application for a waiver of inadmissibility
pursuant to 8 U.S.C. § 1182(k). He argues that the BIA erred in holding that his
father’s knowledge of Mushtaq’s inadmissibility at the time that Mushtaq
entered the United States as a minor is imputed to Mushtaq, thereby
disqualifying him from relief under § 1182(k). He also argues that the IJ erred
*
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should not be published and is not precedent except under the limited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. 08-60019
in denying relief under § 1182(k) as a matter of discretion. In dismissing
Mushtaq’s appeal, the BIA found only that the imputation of Mushtaq’s father’s
knowledge to Mushtaq was proper for purposes of § 1182(k), and it did not
address the IJ’s alternative, discretion-based denial.
Because this court generally reviews only the BIA’s decision, the issue
whether the IJ erred in denying relief as a matter of discretion is not properly
before us. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). However, even
if Mushtaq were to show that the BIA erred in imputing his father’s knowledge
to him, remand to the BIA for a determination of the propriety of the IJ’s
discretion-based denial would be necessary before this case could be decided. See
Nakimbugwe v. Gonzales, 475 F.3d 281, 284-85 (5th Cir. 2007). Further, the
Government is correct that if the BIA were to affirm the IJ’s discretion-based
denial, this court would lack jurisdiction to review that denial pursuant to
8 U.S.C. § 1252(a)(2)(B)(ii). See Ayanbando v. Chertoff, 517 F.3d 273, 276-77
(5th Cir. 2008) (holding that this court lacks jurisdiction to review denials when
the applicable statute specifies, as does § 1182(k), that relief is discretionary).
Accordingly, before this court reaches the complex question whether Mushtaq’s
father’s knowledge was properly imputed to Mushtaq, judicial economy dictates
that we REMAND this case to the BIA for the limited purpose of determining
whether the IJ erred in denying relief under § 1182(k) as a matter of discretion.
REMANDED
2