George Muchanga v. Eric Holder, Jr. ( 2013 )

Case: 12-60542 Document: 00512248825 Page: 1 Date Filed: 05/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2013
No. 12-60542
Summary Calendar Lyle W. Cayce
Clerk
GEORGE GAKIO MUCHANGA,
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. A078 999 466
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner George Gakio Muchanga asks us to review the denial of his
motion to reopen following the discretionary denial of his application for
adjustment of status brought under 8 U.S.C. § 1255(a). Pursuant to
§ 1252(a)(2)(B)(i), no court has jurisdiction to review discretionary denials of
relief, including decisions denying motions for adjustment of status under
§ 1255(a). See Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (invoking
jurisdictional bar where adjustment of status was denied as a matter of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-60542 Document: 00512248825 Page: 2 Date Filed: 05/21/2013
No. 12-60542
discretion after the petitioner failed to disclose prior arrest). Further, “where a
final order of removal is shielded from judicial review by a provision of
§ 1252(a)(2), so, too, is [the] refusal to reopen that order.” Assaad v. Ashcroft,
378 F.3d 471, 474 (5th Cir. 2004) (internal quotation marks and citation
omitted).
Section 1252(a)’s jurisdiction-stripping provisions are not absolute.
Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). We retain
jurisdiction to review “constitutional claims or questions of law.” § 1252(a)(2)(D);
see, e.g., Bokhari v. Holder, 622 F.3d 357, 359 (5th Cir. 2010), (reviewing
determination that petitioner’s untimely application made him statutorily
ineligible for adjustment of status). Muchanga does not contend that the denial
of adjustment presents a question of law. Although he purports to raise a claim
of the denial of due process, Muchanga’s argument is merely a restatement of his
claim that the denial of his motion to reopen was an abuse of discretion.
Accordingly, we reject this “abuse of discretion claim cloaked in constitutional
garb.” Hadwani, 445 F.3d at 801 (internal quotation marks, citation, and
alteration omitted). We also reject Muchanga’s assertion that § 1252 does not
apply, as he relies on former legislation that is not applicable to his case. See
Santos v. Reno, 228 F.3d 591, 595 (5th Cir. 2000). We also lack jurisdiction to
consider Muchanga’s claim that his removal will result in extreme hardship to
his United States citizen child because Muchanga failed to raise this issue in his
appeal to the BIA. See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). The
petition for review is DISMISSED.
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