Emmanuel B. Adegbite v. U.S. Attorney General

Case: 16-17183 Date Filed: 09/19/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17183
Non-Argument Calendar
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Agency No. A086-976-697
EMMANUEL B. ADEGBITE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 19, 2017)
Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Emmanuel Adegbite seeks review following the BIA’s final order affirming
the IJ’s decision to deny his application for adjustment of status under 8 U.S.C. §
1255. He argues that the Immigration Judge (“IJ”) and the Board of Immigration
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Appeals (“BIA”) erred by misapplying the decision in Matter of Thomas, 21 I. &
N. Dec. 20 (BIA 1995), and assigning dispositive weight to a pending charge for
driving under the influence of alcohol (“DUI”) when denying his application. The
government argues that we lack jurisdiction to consider the petition, because he did
not exhaust his administrative remedies and he challenges a discretionary decision
related to his adjustment of status. After careful review, we dismiss the petition.
We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to
consider claims that have not been exhausted before the BIA. 8 U.S.C. §
1252(d)(1); Amaya-Artunduaga, 463 F.3d at 1250. Moreover, under the
Immigration and Nationality Act (“INA”), we lack jurisdiction to review
discretionary judgments like those involved in considering applications for
adjustment of status. 8 U.S.C. § 1252(a)(2)(B)(i); Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003); see also 8 U.S.C. § 1255(a)
(providing that the Attorney General, at his discretion, may adjust the status of an
alien to that of an alien lawfully admitted for permanent residence if the alien
meets certain requirements); Usmani v. U.S. Att’y Gen., 483 F.3d 1147, 1151
(11th Cir. 2007) (holding that the Attorney General also has the discretion to deny
adjustment of status). We retain jurisdiction only to review “constitutional claims
or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).
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Here, we lack jurisdiction to consider Adegbite’s challenge. For starters,
Adegbite did not exhaust his administrative remedies, because he did not raise his
present argument before the BIA. In his appeal to the BIA, he did not argue that
the IJ misapplied Matter of Thomas by assigning dispositive weight to his pending
DUI charge, nor did he suggest that his DUI charge was an improper factor to
consider. Rather, he argued that the IJ failed to adequately consider the positive
factors in his case, which he contended outweighed the negative factors. As a
result, the BIA did not have the opportunity to decide on the precise question that
Adegbite presents in his petition for review, and we, therefore, lack jurisdiction
over this claim. 8 U.S.C. § 1252(d)(1); see Amaya-Artunduaga, 463 F.3d at 1250.
But even if Adegbite had exhausted his administrative remedies, we would
still lack jurisdiction because he challenges the BIA’s and IJ’s discretionary
decision to deny his application to adjust status. Although he argues that the BIA
and IJ misapplied Matter of Thomas and that his DUI charge may have been an
improper factor to consider, the essence of his argument is that the BIA and IJ
assigned too much weight to his pending DUI charge. Thus, he challenges a
discretionary decision, which have no jurisdiction to consider. See 8 U.S.C. §
1252(a)(2)(D); Gonzalez-Oropeza, 321 F.3d at 1332-33.
PETITION DISMISSED.
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