Gwag v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61134
Summary Calendar
GILL OK GWAG,
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. A93 332 519
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Gill Ok Gwag petitions this court to review the decision of
the Board of Immigration Appeals (BIA) denying Gwag’s application
for adjustment of status and granting voluntary departure in lieu
of removal and deportation. The immigration judge (IJ) denied
Gwag’s application for adjustment of status because he lacked
jurisdiction to adjudicate the application following the death of
Gwag’s brother, who had filed an I-130 petition on Gwag’s behalf.
*
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that this opinion should not be published and is not precedent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. 02-61134
-2-
Under applicable regulations, the death of Gwag’s brother
resulted in the automatic revocation of the previously-approved
I-130 petition absent a discretionary determination by the
Attorney General that revocation would be inappropriate for
humanitarian reasons. See 8 C.F.R. § 205.1(a)(3)(i)(C). The
death certificate for Gwag’s brother, viewed in conjunction with
Gwag’s admission that his brother passed away before he had
interviewed with the INS and the Notice of Automatic Revocation
(“the Notice”) introduced by the Immigration and Naturalization
Service (INS) provided substantial evidence to support the IJ’s
determination that approval of the I-130 petition had been
revoked. See Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir.
2002). Gwag’s contention that the Notice was not properly
authenticated is inadequately briefed and hence will not be
considered by this court. Arguments must be properly briefed in
order to be preserved. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). The appellant’s brief must contain an argument,
which in turn must contain his “contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies.” FED. R. APP. P. 28(a)(9); see
Yohey, 985 F.2d at 225.
Given the revocation of the I-130 petition, we cannot agree
with Gwag’s contention that the IJ abused his discretion in
determining that he lacked authority to adjudicate Gwag’s
application for adjustment of status. See 8 U.S.C. §§ 1154,
No. 02-61134
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1255. Nor can we agree with Gwag’s contention that this matter
should be remanded for consideration of his eligibility for
relief under the Family Sponsor Immigration Act of 2002 (“FSIA”).
See Pub. L. No. 107-150, 116 Stat. 75. Under the provisions of
the FSIA, any request for consideration under that act must first
be presented to the INS. See id. We therefore decline to remand
the matter to the BIA.
Gwag’s remaining contention is that he was denied due
process before the IJ because he was not allowed to present
certain evidence. He submits that equity and due process require
reversal of the IJ’s decision. Because the IJ was without
authority to adjudicate Gwag’s application for adjustment of
status, the evidence described by Gwag was not probative and the
IJ’s refusal to admit such evidence did not violate Gwag’s due
process rights. See Bustos-Torres v. INS, 898 F.2d 1053, 1055
(5th Cir. 1990).
Gwag’s petition for review is DENIED.