Iwotor v. Ashcroft , 73 F. App'x 33 ( 2003 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  August 6, 2003
    Charles R. Fulbruge III
    Clerk
    No. 02-60676
    Summary Calendar
    BENJAMIN A IWOTOR
    Petitioner
    v.
    JOHN ASHCROFT, US ATTORNEY GENERAL
    Respondent
    --------------------
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A75 355 348
    --------------------
    Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
    Judges.
    PER CURIAM:*
    Benjamin A. Iwotor appeals an order issued by the Board of
    Immigration Appeals (“BIA”) that summarily affirmed the decision
    of the Immigration Judge (“IJ”).     Iwotor is a native and citizen
    of Nigeria who entered the United States in 1988 on a student
    visa.     During removal proceedings, the IJ denied Iwotor asylum
    and withholding of deportation and granted him voluntary
    departure.     On a motion to reopen, the BIA remanded Iwotor’s case
    for consideration of an application for adjustment of status.
    *
    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    that this opinion should not be published and is not precedent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.
    No. 02-60676
    -2-
    The IJ concluded that Iwotor was statutorily ineligible for
    adjustment of status because Iwotor did not comply with the order
    of voluntary departure.
    Iwotor contends that he should not be penalized with
    ineligibility for adjustment of status due to a failure to comply
    with an order of voluntary departure because he did not request
    voluntary departure, and he did not meet the requirements for a
    grant of voluntary departure.    He argues that the IJ gratuitously
    and erroneously granted voluntary departure and that he was not
    warned of the penalties associated with a failure to comply with
    the order of voluntary departure.     Iwotor argues that the BIA’s
    order on his motion to reopen must be construed to have some
    effect.   He asserts that the denial of the right to have his
    application for adjustment of status considered constitutes a
    violation of his rights to equal protection and due process.
    We defer to an agency’s interpretation of a federal statute
    unless that interpretation violates “‘the unambiguously expressed
    intent of Congress.’”     McBride v. INS, 
    238 F.3d 371
    , 373-74 (5th
    Cir. 2001).   Because the BIA summarily affirmed the IJ’s decision
    and thus effectively adopted that decision, we review the IJ’s
    decision.   Michael v. INS, 
    115 F.3d 299
    , 302 (5th Cir. 1997).
    We lack jurisdiction to consider Iwotor’s appeal of the IJ’s
    grant of voluntary departure.    
    8 U.S.C. § 1252
    (a)(2)(B)(i); See
    Eyoum v. INS, 
    125 F.3d 889
    , 891 (5th Cir. 1997).
    No. 02-60676
    -3-
    Under 
    8 U.S.C. § 1229
    (c)(d), Iwotor was rendered ineligible
    for ten years for relief in the form of an adjustment of status
    under 
    8 U.S.C. § 1255
     due to his failure to depart the United
    States voluntarily within the time period specified.
    The record demonstrates that Iwotor was warned of the
    penalties associated with a failure to comply timely with the
    order of voluntary departure.   The BIA’s order stated
    specifically that it was not a ruling on the merits of Iwotor’s
    application for an adjustment of status.   Iwotor has not shown
    exceptional circumstances that excused his failure to comply with
    the order of voluntary departure.   See e.g., Alhadji v. Ashcroft,
    No. 01-60184 at 8-10 (5th Cir. May 22, 2003).
    Iwotor does not provide support for his position that the
    denial of consideration of his application for adjustment of
    status constitutes a denial of his rights to due process and
    equal protection.   See e.g., City of Cleburne v. Cleburne Living
    Center, 
    473 U.S. 432
    , 439 (1985).   Iwotor’s ineligibility was
    based on statutory grounds; he has not shown that government
    action substantially prejudiced him.   Calderon-Ontiveros v. INS,
    
    809 F.2d 1050
    , 1052 (5th Cir. 1986).
    Accordingly, Iwotor’s petition for review is DENIED.
    

Document Info

Docket Number: 02-60676

Citation Numbers: 73 F. App'x 33

Judges: King, Davis, Barksdale

Filed Date: 8/6/2003

Precedential Status: Non-Precedential

Modified Date: 10/19/2024