Baig v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2004
Charles R. Fulbruge III
Clerk
No. 03-60592
Summary Calendar
MIRZA A. BAIG,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72-450-368
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Mirza Baig has filed a petition for review of a
final order of the Board of Immigration Appeals (“BIA”) denying
his motion to reopen his deportation proceeding. We review for
abuse of discretion the BIA’s denial of a motion to reopen.
See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
Baig remained in the United States beyond his voluntary
departure date. As a result, the BIA determined that he was
statutorily ineligible for an adjustment of status and denied his
motion to reopen. Baig argues that the BIA abused its discretion
*
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this opinion should not be published and is not precedent except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. 03-60592
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because, after the conclusion of his deportation hearing, he
became eligible for an adjustment of status due to his labor
certification under the Legal Immigration Family Equity Act (LIFE
Act) Amendments.**
Because Baig’s deportation proceedings commenced prior to
the effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), the governing statutory
provisions are found in the now-repealed Section 242B(e)(2)(A) of
the Immigration and Nationality Act (INA), 8 U.S.C. § 1252b,***
which provides in pertinent part:
Any alien allowed to depart voluntarily under 244(e)(1)
or who has agreed to depart voluntarily at his own
expense under Section 242(b)(1) who remains in the
United States after the scheduled date of departure,
other than because of exceptional circumstances, shall
not be eligible for relief described in paragraph (5)
for a period of 5 years after the scheduled date of
departure or the date of unlawful reenter,
respectively.
INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996).
The relief that is unavailable due to a failure to voluntarily
depart includes adjustments of status. Id. § 242B(5)(C),
8 U.S.C. § 1252b(5)(C)(repealed 1996). For purposes of the
voluntary departure provisions, “[t]he term ‘exceptional
**
The LIFE Act located at Pub. L. No. 106-553, and the LIFE
Act Amendments of 2000 at Pub. L. No. 106-554.
***
The IIRIRA repealed 8 U.S.C. § 1252b and replaced it
with a new removal proceeding provision codified at 8 U.S.C.
§ 1229a. However, the provisions of 8 U.S.C. § 1252b apply to
this matter because Baig’s deportation proceedings commenced
prior to the April 1, 1997, effective date of the IIRIRA.
See Romani v. INS, 146 F.3d 737, 738 n.1 (9th Cir. 1998).
No. 03-60592
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circumstances’ refers to exceptional circumstances (such as
serious illness of the alien or death of an immediate relative of
the alien, but not including less compelling circumstances)
beyond the control of the alien.” Id. § 242B(f)(2), 8 U.S.C.
§ 1252b(f)(2)(repealed 1996). Subsequent statutory changes
creating eligibility for adjustment of status are not one of the
enumerated “exceptional circumstances.” See Shaar v. INS,
141 F.3d 953, 957 (9th Cir. 1998). Accordingly, the BIA did not
abuse its discretion in denying Baig’s motion to reopen his
deportation proceedings. See Lara, 216 F.3d at 496.
Baig further argues that his due process rights were
violated when the BIA denied his motion to reopen deportation
proceedings prior to the Immigration and Naturalization Service
(INS),**** responding to his request for an extension of voluntary
departure. We review due process challenges in immigration
proceedings de novo. Anwar v. INS, 116 F.3d 140, 144 (5th Cir.
1997).
Baig’s argument is not supported by the record as he did
receive notice of the INS’s denial of his extension request prior
to filing his motion to reopen. Moreover, Baig has no
fundamental right to be present in the United States.
See Shaar, 141 F.3d at 958 (citing Harisiades v. Shaughnessy,
342 U.S. 580, 586-87 (1952)).
****
The enforcement functions of the INS have since been
transferred to the Department of Homeland Security. 6 U.S.C.
§ 251.
No. 03-60592
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PETITION DENIED.