Olajuwon 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 September 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-60825
Summary Calendar
AFEES OLAJUWON,
Petitioner,
versus
JOHN ASHCROFT, U.S.
ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74-203-064
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Afees Olajuwon, a native and citizen of Nigeria, appeals an
order issued by the Board of Immigration Appeals (“BIA”) that
summarily affirmed the decision of the Immigration Judge (“IJ”)
denying Olajuwon’s application for voluntary departure. Olajuwon
argues that his due process rights were violated at various
stages of his removal proceedings because he was denied the
opportunity to argue his eligibility for voluntary departure, was
not informed of the grounds of his denial by the IJ, and because
*
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that this opinion should not be published and is not precedent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. 02-60825
-2-
the BIA summarily affirmed the decision. The record reflects
that Olajuwon never objected that he was denied the opportunity
to argue statutory eligibility. In any event, the record
demonstrates that the IJ informed Olajuwon that the basis for the
decision was Olajuwon’s statutory ineligiblity due to his status
as an arriving alien. In addition, this court has held that the
summary affirmance procedure utilized by the BIA does not
constitute a due process violation. See Soadjede v. Ashcroft,
324 F.3d 830, 832-33 (5th Cir. 2003). Olajuwon’s due process
challenge is without merit.
Olajuwon also argues that the IJ erred in denying his
application for voluntary departure. At his removal hearing,
Olajuwon confirmed that he was applying for a voluntary departure
prior to the commencement of removal proceedings under 8 U.S.C
§ 1229c(a)(1). At the hearing and later in his reply brief,
Olajuwon conceded his status as an “arriving alien.” Under these
circumstances, Olajuwon is ineligible for voluntary departure.
8 U.S.C. § 1229c(a)(4); In re Arguelles-Campos, 22 I & N Dec. 811
n.2 (BIA 1999). For the first time in his reply brief, Olajuwon
alternatively argues that he is applying for voluntary departure
as an “applicant for admission.” This court will not review this
argument raised for the first time in his reply brief. See Unida
v. Levi Strauss Co., 986 F.2d 970, 976 n.4 (5th Cir. 1993).
Olajuwon’s petition for review is DENIED.