Emejuru v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 29, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
OBINNA FAUSTINUS EMEJURU,
Petitioner, No. 04-9601
v.
ALBERTO R. GONZALES, Attorney (B.I.A. No. A95 556 405)
General,
Respondent.
ORDER AND JUDGMENT*
Before McKAY, PORFILIO, and HARTZ, Circuit Judges.
Petitioner Obinna Emejuru contests the denial by the immigration judge (IJ) of his
request for a continuance of his removal proceedings and the summary affirmance of the
denial by the Board of Immigration Appeals (BIA). Because we lack jurisdiction to
review the discretionary decision denying the continuance request, we dismiss the
petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. The
court generally disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. BACKGROUND
Mr. Emejuru is a native of Nigeria who was admitted on a nonimmigrant-student
visa on June 2, 1999. The Bureau of Immigration and Customs Enforcement initiated
removal proceedings against him on February 12, 2004, for maintaining unauthorized
employment in violation of the Immigration and Nationality Act (INA) § 237(a)(1)(C)(i);
8 U.S.C. § 1227(a)(1)(C)(i). Mr. Emejuru requested a continuance to allow him to pursue
an adjustment-of-status claim on the basis that he was married to a United States citizen.
The IJ ordered him removed on March 17, 2004. Also, the IJ denied his continuance
request, saying that Mr. Emejuru was rendered ineligible for adjustment of status by INA
§ 212(a)(6)(C)(ii)(I); 8 U.S.C. 1182(a)(6)(C)(ii)(I), which provides that any alien who
falsely misrepresents himself to be a citizen of the United States is inadmissible. The IJ
said that Mr. Emejuru had misrepresented himself as a United States citizen by signing an
I-9 Employment Eligibility Verification form with the box checked asserting that he was
a citizen or national of the United States. The BIA summarily affirmed the IJ’s opinion,
making it the final agency determination. See 8 C.F.R. 1003.1(e)(4) (describing
procedures for affirmance without opinion).
Mr. Emejuru contests (1) the IJ’s finding that he misrepresented himself as a
United States citizen and (2) the BIA’s affirmance of the denial of a continuance without
issuing an opinion. The challenge to the affirmance-without-opinion procedure is
foreclosed by Yuk v. Ashcroft. 335 F.3d 1222, 1232 (10th Cir. 2004) (summary-
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affirmance procedures do not violate principles of administrative law or due process). As
for the determination that he had misrepresented his citizenship, it was made in the
context of a request for a continuance, and is relevant only to a challenge to the denial of
the request. But we have no jurisdiction to hear such a challenge.
INA § 242 (a)(2)(B)(ii); 8 U.S.C. § 1252 (a)(2)(B)(ii), removes our jurisdiction to
review certain discretionary decisions made by the Attorney General. It provides:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), and regardless of whether the judgment, decision, or
action is made in removal proceedings, no court shall have jurisdiction to
review--
(ii) any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the Secretary
of Homeland Security, other than the granting of relief under section
1158(a) of this title.
Id. In Yerkovich v. Ashcroft, 381 F.3d 990, 993-95 (10th Cir. 2004), we held that the
regulation governing the issuance of a continuance, 8 C.F.R. § 1003.29 (“[t]he
Immigration Judge may grant a motion for continuance for good cause shown”), clearly
confers discretion on the IJ, and thus the grant or denial of a continuance falls within
§1252 (a)(2)(B)(ii)’s jurisdiction-stripping provision. Because we lack jurisdiction to
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review the discretionary decision to grant or deny a continuance, we DISMISS the
petition.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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