Ochondo v. Gonzales , 220 F. App'x 263 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2007
Charles R. Fulbruge III
Clerk
No. 06-60546
Summary Calendar
BARRACK JUMA OCHONDO,
Petitioner,
versus
ALBERTO R. GONZALES, U S ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 426 558
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Barrack Juma Ochondo, a citizen and native of Kenya,
petitions this court for review of the Board of Immigration
Appeal’s (BIA) order affirming the immigration judge’s (IJ) order
denying his requests for asylum, withholding of removal,
cancellation of removal, and withholding of removal under the
Convention Against Torture and final order of removal. When, as
here, the BIA adopts the IJ’s decision, we review the IJ’s
decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 06-60546
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Ochondo argues that the IJ and BIA erred by denying his
request for cancellation of removal under 8 U.S.C.
§ 1229b(b)(2)(a)(i)(I) because the evidence showed that he was
abused by his United States citizen former spouse. For the first
time in this court, he asserts that the IJ’s denial of his
request for cancellation of removal violated his due process
rights.
We do not have jurisdiction to consider Ochondo’s challenge
to the IJ’s and BIA’s determination that Ochondo did not suffer
extreme cruelty. See Wilmore v. Gonzales, 455 F.3d 524, 526-28
(5th Cir. 2006). Because Ochondo did not raise his due process
claim before the BIA, we do not have jurisdiction to consider the
due process claim. See Goonsuwan v. Ashcroft, 252 F.3d 383, 389-
90 (5th Cir. 2001). In any event, relief from removal under
discretionary waiver is not entitled to due process protection.
Nguyen v. District Director, Bureau of Immigration & Customs
Enforcement, 400 F.3d 255, 259 (5th Cir. 2005). Ochondo’s
challenges to the denial of his request for cancellation of
removal are dismissed.
Ochondo argues that the IJ erred by denying his request for
withholding of removal on the grounds that he was HIV positive,
that people with HIV are discriminated against in Kenya, and that
sufficient medical care is not available. Because Ochondo did
not show that he faced persecution from the Kenyan government or
a group or groups that the Kenyan government was unwilling or
No. 06-60546
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unable to control, the IJ’s denial of Ochondo’s request for
withholding of removal was supported by substantial evidence.
See Adebisi v. INS, 952 F.2d 910, 913-14 (5th Cir. 1992).
Ochondo’s challenge to the denial of his request for withholding
of removal is denied.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.