Karim v. Gonzales , 187 F. App'x 408 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2006
Charles R. Fulbruge III
Clerk
No. 05-60477
Summary Calendar
AMIRI KARIM, also known as Karim Amiri,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 565 775
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Karim Amiri (Amiri), a native and citizen of Pakistan, was
admitted into the United States on July 15, 2000, as a non-
immigrant visitor with authorization to remain not more than six
months. Because Amiri overstayed, removal proceedings were
instituted. The Immigration Judge (IJ) denied Amiri’s
applications for asylum, withholding of removal, and relief under
Convention Against Torture (CAT) and permitted Amiri to depart
voluntarily. On March 24, 2005, the Board of Immigration Appeals
(BIA) adopted and affirmed the IJ’s decision insofar as it found
*
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this opinion should not be published and is not precedent except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. 05-60477
-2-
that Amiri was not credible and had failed to meet his burden of
proof.
Amiri moved the BIA to reconsider and/or reopen the removal
proceedings so that he could apply for adjustment of status, to
which, he contended, he was entitled as a beneficiary of a
pending immigrant petition for alien worker filed by a
prospective employer that was on appeal after it was denied
because of the employer’s inability to pay the proffered wages.
The BIA denied the motion. Amiri timely petitioned this court
for review of the BIA’s decision denying the motion to reconsider
and/or reopen the removal proceedings.
Amiri contends that the BIA erred in affirming the IJ’s
decision denying his application for withholding of removal and
for relief under the CAT. Because Amiri did not petition for
review of the BIA’s March 24, 2005 decision, and because he
identified no factual or legal errors in the IJ’s order in his
motion to reconsider and/or reopen, this issue is not properly
before the court. See Stone v. INS, 514 U.S. 386, 394 (1995); 8
U.S.C. § 1252(a)(1), (b)(1); Trevino v. Johnson, 168 F.3d 173,
181 n.3 (5th Cir. 1999).
This court reviews the BIA’s “denial of both a motion to
reopen and a motion for reconsideration under a highly
deferential abuse-of-discretion standard.” Singh v. Gonzales,
436 F.3d 484, 487 (5th Cir. 2006) (quotation marks omitted); see
8 C.F.R. § 1003.2(a).
No. 05-60477
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Citing Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004),
Amiri contends that the BIA abused its discretion and violated
his right to due process in refusing to reopen the removal
proceedings because the BIA’s decision will have the consequence
of making him ineligible for adjustment of status under 8 U.S.C.
§ 1255(i). The BIA determined that Amiri had failed to make a
prima facie showing of eligibility for such relief because he had
failed to establish that an immigrant visa was immediately
available. See 8 U.S.C. § 1255(i)(2)(B). Amiri has not shown
that the BIA abused its discretion in refusing to reopen the
proceedings to permit him to pursue his application for
adjustment of status. See Ahmed v. Gonzales, ___ F.3d ___, No.
05-60032, 2006 WL 1064196 at *4–5 (5th Cir. Apr. 24, 2006)
(declining to follow Subhan). Because the relief he seeks is
discretionary, his due process rights are not implicated. See
id. at *7. Amiri’s petition is DENIED.