Woldemariam v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1579
ALEMAYEHU WOLDEMARIAM,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A24-601-749)
Submitted: March 6, 2006 Decided: March 17, 2006
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Allan Ebert, LAW OFFICES OF ALLAN EBERT, Washington, D.C., for
Petitioner. Peter D. Keisler, Assistant Attorney General, M.
Jocelyn Lopez Wright, Assistant Director, Eric W. Marsteller,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alemayehu Woldemariam, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal of an Immigration Judge’s
order denying him a waiver of inadmissibility under § 212(c) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c).
On appeal, Woldemariam argues that a July 17, 2001 in
absentia order of removal was implicitly rescinded when the
Immigration Judge accepted his application for a § 212(c) waiver
and thus he is in fact a lawful permanent resident eligible for the
waiver. We find no evidence in the record that the July 17, 2001
order of removal was ever rescinded. Thus, Woldemariam was no
longer a lawful permanent resident and was not eligible for the
§ 212(c) waiver. Accordingly, Woldemariam’s contention lacks
merit.
Woldemariam further asserts that the court violated his
due process rights when it determined that he was ineligible for
the § 212(c) waiver and § 212(a)(2)(A)(ii) petty offense exception
based on the allegation of multiple convictions for which he was
never charged in the Notice to Appear. This argument is also
without merit. First, the denial of a request for a waiver of
inadmissibility pursuant to § 212(c) cannot constitute a due
process violation, because an alien has no constitutionally-
protected liberty or property interest in the “right” to
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discretionary relief. See Smith v. Ashcroft, 295 F.3d 425, 429
(4th Cir. 2002). Moreover, Woldemariam’s application for a
§ 212(c) waiver was denied because he was not a lawful permanent
resident, not because he allegedly had multiple convictions.
Finally, Woldemariam was denied eligibility for the
§ 212(a)(2)(A)(ii) exception because he faced a maximum of five
years in prison for his forgery conviction, not because of multiple
convictions.
Accordingly the petition for review is denied. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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