Odero v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 24, 2009
No. 08-60866
Summary Calendar Charles R. Fulbruge III
Clerk
MERAB ADHIAMBO ODERO,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 575 767
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Merab Adhiambo Odero, a native and citizen of Kenya, petitions this court
for review of the decision of the Bureau of Immigration Appeals (BIA), affirming
and dismissing her appeal from the decision of the immigration judge (IJ)
denying her application for adjustment of status to permanent resident pursuant
to 8 U.S.C. § 1255, and ordering her removal.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60866
We generally review only the BIA’s decision except to the extent that the
IJ’s decision influences the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.
2007). Under the plain language of the Real ID Act, this court does not have
jurisdiction to review “any judgment regarding the granting of relief under
section . . . 1255.” 8 U.S.C. § 1252(a)(2)(B)(i). As such, we are statutorily barred
from reviewing the IJ’s and BIA’s purely discretionary denial of adjustment of
status. Ayanbadejo v. Chertoff, 517 F.3d 273, 275, 276-78 & 277 n. 11 (5th Cir.
2008); Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006).
Odero attempts to circumvent this jurisdictional limitation by asserting
that her claims on appeal are legal and constitutional challenges. See
§ 1252(a)(2)(D). She first claims that the IJ committed legal error by requiring
that she prove that her marriage to a United States citizen was bona fide and
viable despite her being the beneficiary of an approved I-130 visa petition. This
argument is unavailing. Hadwani, 445 F.3d at 800; see also INS v. Chadha, 462
U.S. 919, 937 (1983) (explaining that classification as an immediate relative does
not automatically entitle an alien to adjustment of status). Odero also contends
that the IJ and BIA violated her right to a full and fair hearing. “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. Gonzales, 447 F.3d 433, 440 (5th Cir.
2006). Thus, Odero can claim no fundamental liberty interest in applying for or
receiving an adjustment of status, and her due process claim fails. Accordingly,
because Odero’s challenge to the discretionary denial of her application for
adjustment of status does not raise a substantial question of law or
constitutional claim, this court lacks jurisdiction to consider it. Assaad v.
Ashcroft, 378 F.3d 471, 475-76 (5th Cir. 2004).
Accordingly, Odero’s petition for review is DISMISSED for lack of
jurisdiction.
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