Okoronkwo v. Gonzales ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2007
Charles R. Fulbruge III
Clerk
No. 06-60441
Summary Calendar
BROWN EKELEDO OKORONKWO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A27 172 234)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
On two bases, Brown Ekeledo Okoronkwo, a native and citizen of
Nigeria, petitions for review of the Board of Immigration Appeals’
(BIA) denying his motion for reconsideration. Such denial is
reviewed “under a highly deferential abuse-of-discretion standard”.
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quotation
omitted).
First, Okoronkwo challenges the BIA’s determining his vacated
state aggravated-assault conviction was still valid for immigration
*
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this opinion should not be published and is not precedent except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.
purposes. Although the BIA’s determination was consistent with
Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002) (“a
vacated conviction, federal or state, remains valid for purposes of
the immigration laws”), Okoronkwo contends erroneously that
Renteria-Gonzalez has been effectively overturned. See Discipio v.
Ashcroft, 417 F.3d 448, 450 (5th Cir. 2005) (“a panel of this Court
is without authority to contradict the holding of the previous
panel in Renteria-Gonzalez”). Okoronkwo does not show the BIA
abused its discretion. See Singh, 436 F.3d at 487.
For his other contention, Okoronkwo maintains the immigration
judge erred in denying his hardship-waiver request under §
216(c)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1186a(c)(4)(B). Our court lacks jurisdiction to review the BIA’s
refusal to grant reconsideration of its determining Okoronkwo was
not entitled to such a waiver. See Assaad v. Ashcroft, 378 F.3d
471, 474-75 (5th Cir. 2004).
DENIED IN PART; DISMISSED IN PART
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BENAVIDES, Circuit Judge, concurring:
I join in the judgment of the Court and write separately to
emphasize that, given the abuse of discretion standard of review,
we do not need to consider the validity of Renteria-Gonzalez v.
INS, 322 F.3d 804, 814 (5th Cir. 2002).
Because the appellant did not appeal the BIA’s decision
upholding the immigration judge’s deportation order, the only
decision before us is the BIA’s denial of the appellant’s motion
for reconsideration. Thus, rather than reviewing the BIA’s legal
findings de novo, we instead review its decision to not reconsider
its earlier determination under the highly deferential abuse of
discretion standard. Singh v. Gonzales, 436 F.3d 484, 487 (5th
Cir. 2006). I agree with the government’s assertion that we must
affirm the BIA’s decision unless it is “capricious, racially
invidious, utterly without foundation in evidence, or otherwise so
irrational that is arbitrary.” Id. Here, the BIA adhered to
precedent which it reasonably believed to be valid. Therefore,
regardless of the actual status of Renteria-Gonzalez, about which
I continue to have reservations, the BIA did not abuse its
discretion in denying the appellant’s motion for reconsideration.
3