Bhiwandiwala v. Mukasey , 270 F. App'x 354 ( 2008 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2008
No. 07-60197
Summary Calendar Charles R. Fulbruge III
Clerk
MUDASSIR MOHAMED BHIWANDIWALA,
Petitioner,
v.
MICHAEL B. MUKASEY, U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 801 905
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Mudassir Mohamed Bhiwandiwala, a native and citizen of India, was
charged with being an alien remaining in the United States longer than
permitted. Before the Immigration Judge (IJ), Bhiwandiwala applied for an
adjustment of status and a waiver of inadmissability. The IJ concluded that
Bhiwandiwala was removable, and that Bhiwandiwala's applications for
adjustment of status and for waiver of inadmissability were pretermitted.
Bhiwandiwala appealed to the Board of Immigration Appeals (BIA), which
*
Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances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 Fifth Circuit Rule 47.5.4.
No. 07-60197
dismissed because Bhiwandiwala failed to provide specific reasons for the
appeal, and because the record did not indicate that Bhiwandiwala filed, within
the time set for filing a brief, a statement in support of the appeal or an
explanation of why no such document had been filed.
Bhiwandiwala argues that the BIA abused its discretion in dismissing his
appeal. His argument is couched in terms of ineffective assistance of counsel:
the BIA allegedly abused its discretion in dismissing Bhiwandiwala's appeal
because his failure to properly file his appellate documents was the fault of his
attorney.1
This court lacks jurisdiction to consider Bhiwandiwala's argument. The
parties agree that Bhiwandiwala filed with the BIA a motion to reopen his
appeal based on his claim of ineffective assistance. However, the BIA denied
that motion after Bhiwandiwala filed the instant petition for review. As such,
the instant review pertains only to the BIA's initial dismissal of Bhiwandiwala's
appeal, not to the BIA's subsequent refusal to reopen on ineffective assistance
grounds. The court's cognizance of the latter disposition does not mean that it
may conveniently review both BIA orders together. Rather, pursuant to our
decision in Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006), each order
must be challenged in a different petition for review, as each is a separate "final
order." Because the instant petition for review pertains only to the BIA's initial
1
Bhiwandiwala peppers his brief with the phrase "due process," as if to suggest
a distinct due process claim. However, his "due process" argument merely restates his
abuse of discretion argument premised on ineffective assistance.
In any event, any due process argument based on these facts would not be
cognizable. According to Bhiwandiwala, the only point of error expressly raised on
appeal to the BIA was that the Immigration Judge erred in denying his Adjustment
of Status application. "[D]iscretionary 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); see also Assaad v.
Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) ("'[T]he failure to receive relief that is
purely discretionary in nature does not amount to a deprivation of a liberty interest.'"
(quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)).
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No. 07-60197
dismissal of Bhiwandiwala's appeal, the court lacks jurisdiction to review herein
his ineffective assistance argument.
To the extent Bhiwandiwala's brief may reasonably be read to include an
abuse-of-discretion argument not rooted in ineffective assistance of counsel, the
court fails to see how the BIA abused its discretion in enforcing administrative
rules governing appeals before the BIA. See 8 C.F.R. § 1003.3(c)(1) ("In its
discretion, the Board may consider a brief that has been filed out of time.").
Bhiwandiwala’s petition for review is DENIED.
3