Iwotor 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 6, 2003
Charles R. Fulbruge III
Clerk
No. 02-60676
Summary Calendar
BENJAMIN A IWOTOR
Petitioner
v.
JOHN ASHCROFT, US ATTORNEY GENERAL
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 355 348
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Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Benjamin A. Iwotor appeals an order issued by the Board of
Immigration Appeals (“BIA”) that summarily affirmed the decision
of the Immigration Judge (“IJ”). Iwotor is a native and citizen
of Nigeria who entered the United States in 1988 on a student
visa. During removal proceedings, the IJ denied Iwotor asylum
and withholding of deportation and granted him voluntary
departure. On a motion to reopen, the BIA remanded Iwotor’s case
for consideration of an application for adjustment of status.
*
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that this opinion should not be published and is not precedent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. 02-60676
-2-
The IJ concluded that Iwotor was statutorily ineligible for
adjustment of status because Iwotor did not comply with the order
of voluntary departure.
Iwotor contends that he should not be penalized with
ineligibility for adjustment of status due to a failure to comply
with an order of voluntary departure because he did not request
voluntary departure, and he did not meet the requirements for a
grant of voluntary departure. He argues that the IJ gratuitously
and erroneously granted voluntary departure and that he was not
warned of the penalties associated with a failure to comply with
the order of voluntary departure. Iwotor argues that the BIA’s
order on his motion to reopen must be construed to have some
effect. He asserts that the denial of the right to have his
application for adjustment of status considered constitutes a
violation of his rights to equal protection and due process.
We defer to an agency’s interpretation of a federal statute
unless that interpretation violates “‘the unambiguously expressed
intent of Congress.’” McBride v. INS, 238 F.3d 371, 373-74 (5th
Cir. 2001). Because the BIA summarily affirmed the IJ’s decision
and thus effectively adopted that decision, we review the IJ’s
decision. Michael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
We lack jurisdiction to consider Iwotor’s appeal of the IJ’s
grant of voluntary departure. 8 U.S.C. § 1252(a)(2)(B)(i); See
Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997).
No. 02-60676
-3-
Under 8 U.S.C. § 1229(c)(d), Iwotor was rendered ineligible
for ten years for relief in the form of an adjustment of status
under 8 U.S.C. § 1255 due to his failure to depart the United
States voluntarily within the time period specified.
The record demonstrates that Iwotor was warned of the
penalties associated with a failure to comply timely with the
order of voluntary departure. The BIA’s order stated
specifically that it was not a ruling on the merits of Iwotor’s
application for an adjustment of status. Iwotor has not shown
exceptional circumstances that excused his failure to comply with
the order of voluntary departure. See e.g., Alhadji v. Ashcroft,
No. 01-60184 at 8-10 (5th Cir. May 22, 2003).
Iwotor does not provide support for his position that the
denial of consideration of his application for adjustment of
status constitutes a denial of his rights to due process and
equal protection. See e.g., City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439 (1985). Iwotor’s ineligibility was
based on statutory grounds; he has not shown that government
action substantially prejudiced him. Calderon-Ontiveros v. INS,
809 F.2d 1050, 1052 (5th Cir. 1986).
Accordingly, Iwotor’s petition for review is DENIED.