Pacifique Gahamanyi v. Michael B. Mukasey, etc. , 348 F. App'x 189 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1616
___________
Pacifique Gahamanyi, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
1
Eric H. Holder, Jr., Attorney General *
of the United States, *
* [UNPUBLISHED]
Respondent. *
___________
Submitted: October 8, 2009
Filed: October 14, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Pacifique Gahamanyi, a native of Burundi and citizen of Rwanda, petitions for
review of an order of the Board of Immigration Appeals (BIA) denying his motion to
reconsider an earlier decision,2 denying a waiver of inadmissibility under 8 U.S.C.
1
Eric H. Holder, Jr., has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
2
The BIA’s earlier decision denying a waiver of inadmissibility under 8 U.S.C.
§ 1159(c), and finding Gahamanyi ineligible to adjust his status under 8 U.S.C.
§ 1182(h), and finding him ineligible for adjustment of status under 8 U.S.C. § 1255.
We lack jurisdiction to review the BIA’s denial of a section 1182(h) waiver of
inadmissibility, see 8 U.S.C. § 1252(a)(2)(B)(i) (“no court shall have jurisdiction to
review any judgment regarding the granting of relief under section 1182(h)”), and,
absent a waiver of inadmissibility, Gahamanyi is statutorily ineligible to adjust his
status under section 1255, see 8 U.S.C. § 1255 (listing requirements for adjustment
of status); cf. Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008) (appeals
courts not precluded from reviewing nondiscretionary decisions that pertain to
statutory eligibility for discretionary relief). As to the denial of the motion to
reconsider, we find the BIA did not abuse its discretion in denying the motion as
untimely. See 8 U.S.C. § 1229a(c)(6) (motion to reconsider must be filed within 30
days of order); Ghasemimehr v. Gonzales, 427 F.3d 1160, 1162-63 (8th Cir. 2005)
(per curiam) (BIA did not abuse its discretion in denying untimely motion to reopen).
Accordingly, we deny the petition.
______________________________
§ 1159, is not properly before us. See 8 U.S.C. § 1252(b)(1) (petition for review must
be filed no later than 30 days of final order of removal); Strato v. Ashcroft, 388 F.3d
651, 654-55 (8th Cir. 2004) (motion to reconsider does not toll time for appeal of
underlying removal order).
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