Greg Phillips v. Eric Holder, Jr.

Case: 13-60512 Document: 00512624875 Page: 1 Date Filed: 05/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 13-60512 May 9, 2014
Summary Calendar Lyle W. Cayce
Clerk
GREG PHILLIPS, also known as Greg Wally, also known as Gregg Wadarmar
Phillips, also known as Wally Wallaces, also known as Peter Williams, also
known as Richard Dumars,
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. A029 772 867
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Greg Phillips, a native and citizen of Jamaica, petitions this court for
review of an order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ’s) order denying withholding of removal
and relief under the Convention Against Torture (CAT). He contends that the
BIA failed to fully address his eligibility for a waiver of inadmissibility under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60512
8 U.S.C. § 1182(h) and that he is in fact eligible for that waiver because he has
been in the United States for 27 years and his immediate family would suffer
extreme hardship if he was removed from the United States. Phillips has failed
to brief, and has thus abandoned, any claims he may have had concerning the
determinations that (1) he is ineligible for cancellation of removal, adjustment
of status, a waiver under former 8 U.S.C. § 1182(c) (repealed 1996), or asylum,
and (2) he is not entitled to withholding of removal or relief under the CAT.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Generally, a court should remand a case to the BIA for consideration of
an issue the BIA did not reach in the first instance. See, e.g., I.N.S. v. Orlando
Ventura, 537 U.S. 12, 16 (2002). However, because Phillips cannot apply for
the § 1182(h) waiver based on the BIA’s findings, remand is unnecessary. See
Zhao v. Gonzales, 404 F.3d 295, 310-11 (5th Cir. 2005).
Phillips is a deportable alien already in the United States.
Consequently, he cannot apply for a waiver under § 1182(h) without
concurrently filing an application to adjust status. See 8 C.F.R. § 1245.1(f);
Cabral v. Holder, 632 F.3d 886, 891-92 (5th Cir. 2011). The BIA, however,
determined that there was no indication in the record that Phillips was
statutorily eligible to adjust status. Phillips does not challenge the latter
determination, and the record contains no evidence to the contrary. See 8
U.S.C. § 1255(i). Thus, because Phillips cannot apply to adjust status, he has
no means of applying for a waiver under § 1182(h). See Cabral, 632 F.3d at
891.
We lack jurisdiction to review Phillips’s argument, which was not
exhausted before the BIA, that the attorney who represented him in connection
with his 1988 conviction rendered ineffective assistance, and thus his plea of
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No. 13-60512
guilty to that offense was involuntary. See 8 U.S.C. § 1252(d)(1); Claudio v.
Holder, 601 F.3d 316, 318 (5th Cir. 2010).
PETITION DISMISSED IN PART FOR LACK OF JURISDICTION;
DENIED IN PART.
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