Khalid Umer v. Eric Holder, Jr.

Case: 10-60342 Document: 00511407530 Page: 1 Date Filed: 03/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2011
No. 10-60342
Summary Calendar Lyle W. Cayce
Clerk
KHALID UMER,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A038 802 967
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Khalid Umer, a native and citizen of Pakistan, petitions this court for
review of an order from the Board of Immigration Appeals (BIA). The BIA
dismissed Umer’s appeal of the decision of the Immigration Judge (IJ) which
granted the respondent’s motion to pretermit Umer’s request for a waiver of
removal pursuant to former 8 U.S.C. § 1182(c) and ordered Umer removed from
the United States.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-60342
Umer argues that the BIA erred in concluding that there is no ground of
inadmissibility under § 1182(a) comparable to his prior theft offense, defined as
an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and for which he was
found removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Umer contends that
his prior theft conviction is a crime of moral turpitude and that he is therefore
eligible for a discretionary waiver.
“While questions of law are reviewed de novo, this court accords deference
to the BIA’s interpretation of immigration statutes unless the record reveals
compelling evidence that the BIA’s interpretation is incorrect.” Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
The BIA promulgated regulations to conform with INS v. St. Cyr, 533 U.S.
289, 326 (2001), including 8 C.F.R. § 1212.3(f)(5), which provides that an
application for relief under former § 1182(c) “shall be denied if: . . . [t]he alien is
deportable under former section 241 of the [Immigration and Nationality] Act
or removable under section 237 of the Act on a ground which does not have a
statutory counterpart in section 212 of the Act.” Vo v. Gonzales, 482 F.3d 363,
367 (5th Cir. 2007). We have previously rejected the argument that a conviction
of aggravated sexual abuse of a child has as a statutory counterpart a crime
involving moral turpitude, ruling that “it is not enough that a crime could be
reclassified. There is no textual link between sexual abuse of a child and crimes
of moral turpitude to indicate that Congress had the same class of offenses in
mind when it enacted the two provisions that must be compared.” Avilez-
Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007). Similarly, because
there is no textual link between “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment is at least one
year,” § 1101(a)(43)(G), and “a crime involving moral turpitude (other than a
purely political offense) or an attempt or conspiracy to commit such a crime,”
§ 1182(a)(2)(A)(i)(I), Umer’s argument fails.
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Case: 10-60342 Document: 00511407530 Page: 3 Date Filed: 03/11/2011
No. 10-60342
Umer argues that his Fifth Amendment right to due process was denied
when the IJ did not permit him to withdraw his concession that he was
removable as charged, after his hearing had been reopened on his unopposed
motion based on ineffective assistance of counsel. Umer’s argument lacks merit
because the IJ’s ruling occurred at a hearing regarding discretionary relief and
because Umer has not demonstrated substantial prejudice. Ogunfuye v. Holder,
610 F.3d 303, 307 (5th Cir. 2010); De Hoyos v. Mukasey, 551 F.3d 339, 343 (5th
Cir. 2008).
Umer also argues that his Fifth Amendment right to due process was
violated because he was charged as removable on the bases of the aggravated
felony theft conviction and of having two prior crimes involving moral turpitude,
one of which was the theft conviction. Umer cites no authority to support his
contention that his right to due process was violated by the charges in the notice
to appear. His conclusory assertion that his right to due process was violated is
deemed abandoned. See Garrido-Morato v. Gonzales, 485 F.3d 319, 322 n.1 (5th
Cir. 2007).
Umer raises as new issues before this court that (1) our approach to
determining eligibility for a waiver violates the Equal Protection Clause; and (2)
his Fifth Amendment right to due process was denied when he was ordered
deported without being allowed to apply for further relief. The second alleged
error was argued to and addressed by the BIA, but not on due process grounds.
We lack jurisdiction to address these newly-raised arguments. See Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); Goonsuwan v. Ashcroft, 252 F.3d
383, 390 (5th Cir. 2001).
The petition for review is DENIED in part and DISMISSED in part for
lack of jurisdiction.
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