Simba Nyika v. Eric Holder, Jr. , 571 F. App'x 351 ( 2014 )

Case: 13-60671 Document: 00512661729 Page: 1 Date Filed: 06/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60671
Fifth Circuit
FILED
Summary Calendar June 12, 2014
Lyle W. Cayce
SIMBA NYIKA, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 759 066
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Simba Nyika petitions this court for review of the decision of the Board
of Immigration Appeals (BIA) dismissing his appeal from the decision of the
Immigration Judge (IJ) denying his application for adjustment of status to
permanent resident pursuant to 8 U.S.C. § 1255, and denying his motion to
reopen and remand.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60671
We have the “authority to review only the BIA’s decision, not the IJ’s
decision, unless the IJ’s decision has some impact on the BIA’s decision.” Wang
v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Our review is limited to the BIA’s
adoption of the IJ’s determination that Nyika was not entitled to relief in the
exercise of discretion. We lack jurisdiction to address Nyika’s argument that
the IJ erred in determining that he was not statutorily eligible for adjustment
of status as the BIA based its decision solely on the IJ’s discretionary denial of
his application for adjustment of status.
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), we are statutorily barred from
reviewing the IJ’s and BIA’s purely discretionary denial of Nyika’s application
for adjustment of status to permanent resident filed pursuant to § 1255. See
§ 1252(a)(2)(B)(i); Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). We
are not precluded from reviewing claims raising constitutional or purely legal
questions. See 8 U.S.C. § 1252(a)(2)(D). Despite the fact that a petitioner’s
purported challenge to the BIA’s decision is phrased as a question of law, a
court lacks jurisdiction to consider that challenge if it is actually a request to
review the denial of discretionary relief. Delgado-Reynua v. Gonzales, 450 F.3d
596, 599-600 (5th Cir. 2006).
Nyika argues that the BIA abused its discretion by failing to
acknowledge his wife’s late arrival at his immigration hearing and her
availability to provide testimony explaining her tardiness and corroborating
the validity of her marriage to Nyika; that the BIA and the IJ abused their
discretion by failing to consider the proffered material, corroborating
testimony and evidence regarding his wife’s tardiness and the validity of their
marriage; and that the BIA and the IJ abused their discretion by unreasonably
drawing negative inferences on certain evidence while ignoring other evidence
supporting a favorable discretionary ruling. Nyika’s arguments are nothing
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more than a disagreement with the weighing of the evidence that factored into
the discretionary determination. Thus, we do not have jurisdiction to consider
these arguments bearing on the discretionary determination. See Hadwani,
445 F.3d at 800.
Nyika also argues that the Board abused its discretion by denying his
motion to reopen and remand proceedings. “[W]here a final order of removal
is shielded from judicial review by a provision in § 1252(a)(2), so, too, is [the
BIA’s] refusal to reopen that order.” Assaad v. Ashcroft, 378 F.3d 471, 474 (5th
Cir. 2004) (internal quotation marks and citation omitted). The BIA
specifically stated that Nyika’s motion to remand, “filed for the purpose of
reconvening the merits hearing so that the United States citizen spouse may
testify and present an amended federal income tax return, tacitly concedes the
reasonableness of the Immigration Judge’s adverse discretionary
determination.” Because we lack jurisdiction to review the order of removal
because it was based on a discretionary determination, we similarly lack
jurisdiction to review the motion to reopen or remand such a determination.
See Assad, 378 F.3d at 474; see also Rodriguez v. Ashcroft, 253 F.3d 797, 799-
800 (5th Cir. 2001) (holding that provision which prohibits review of
discretionary decisions also precludes review of motion to reopen on the same
grounds).
In an attempt to raise a constitutional issue for review, Nyika also
argues that he was deprived of his right to present evidence and to have a full
and fair hearing in violation of due process. Nyika is challenging the denial of
the opportunity to present additional evidence in support of his application for
adjustment of status. “This circuit has repeatedly held that discretionary relief
from removal, including an application for an adjustment of status, is not a
liberty or property right that requires due process protection.” Ahmed v.
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Gonzales, 447 F.3d 433, 440 (5th Cir. 2006); see also Assaad, 378 F.3d at 475(noting that failure to receive discretionary relief does not amount to the
deprivation of a liberty interest). Because Nyika had no liberty interest in
adjustment of status, there can be no due process violation.
Because we lack jurisdiction to review the final order of removal, the
petition for review is DISMISSED.
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