Khan v. Keisler , 253 F. App'x 393 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 7, 2007
No. 07-60047
Summary Calendar Charles R. Fulbruge III
Clerk
MUHAMMAD WASEEM KHAN
Petitioner
v.
PETER D KEISLER, ACTING U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79 008 125
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Muhammad Waseem Khan, a native and citizen of Pakistan, petitions this
court for review of an order of the Board of Immigration Appeals (BIA)
dismissing his motion to reopen removal proceedings. Khan argues for the first
time in this court that the immigration judge (IJ) erred by failing to sua sponte
dismiss the notice to appear (NTA) and terminate removal proceedings because,
pursuant to numerous internal agency memoranda, respondent was prohibited
*
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should not be published and is not precedent except under the limited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. 07-60047
from filing a NTA while Khan’s valid I-485 application to adjust status was
pending.
As respondent correctly points out, Khan did not challenge the NTA before
the IJ or the BIA. Therefore, his argument is unexhausted. See Wang
v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). Although an exception to the
exhaustion requirement exists for due process violations, Khan has not
established a due process violation as internal memoranda do not confer
substantive rights or provide procedures on which an alien may rely. See
Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000). We thus lack
jurisdiction to consider Khan’s argument. See Wang, 260 F.3d at 452;
Goonsuwan v. Ashcroft, 252 F.3d 383, 389-90 (5th Cir. 2001).
Khan next argues that the BIA abused its discretion by denying his motion
to reopen the removal proceedings. He asserts that respondent’s failure to
forward his appeal of the denial of his I-140 petition to the Administrative
Appeals Office (AAO) for two years violated his right to due process and denied
him a fair trial. A motion to reopen should be based on new facts and must
establish a prima facie case of eligibility for the underlying relief sought in order
to be granted. See I.N.S. v. Abudu, 485 U.S. 94, 104 (1988).
Although the CIS’s failure to forward Khan’s appeal of the denial of his
I-140 petition may constitute a new fact, Khan did not demonstrate that he was
prima facie eligible to adjust his status because he did not show that he had an
immediately available immigrant visa. See 8 U.S.C. § 1255(i)(2). The BIA’s
decision to deny Khan’s motion to reopen thus was not an abuse of discretion.
See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
Khan argues that the BIA erred by denying his application for withholding
of removal or relief under the CAT. As the respondent correctly notes, Khan’s
January 19, 2007, petition for review is timely under 8 U.S.C. § 1252(b)(1) only
as to the BIA’s December 20, 2006, denial of the motion to reopen. Khan did not
file a timely petition for review as to the BIA’s June 19, 2006, dismissal of the
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No. 07-60047
appeal wherein Khan challenged the BIA’s denial of withholding of removal and
relief under the CAT. Accordingly, we lack jurisdiction over Khan’s challenge
to the BIA’s denial of withholding of removal and relief under the CAT. See
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).
Khan has moved to remand his case to the BIA with an order directing the
BIA to remand to the IJ for reconsideration based upon the January 22, 2007,
approval of his I-140 petition. Khan has attached to his motion the approval
notification of his I-140 petition. He also has provided information indicating
that he became eligible to adjust his status on July 17, 2007.
Remand is not appropriate here because Khan has not submitted this
evidence to the BIA and has failed to show reasonable grounds for his failure to
do so. See Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994). Moreover,
this court’s review is limited to the administrative record. See id. As the BIA
was not privy to the documents, we decline to consider them.
PETITION FOR REVIEW DENIED; MOTION FOR REMAND DENIED.
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