Omotoyo v. Gonzales , 171 F. App'x 473 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60413
(Summary Calendar)
_____________________
OLUSHOLA FESTUS OMOTOYO, also known as Festus Omotoyo
Petitioner,
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL,
Respondent.
__________________________________________
Petition for Review from the
Board of Immigration Appeals,
No. A75 887 824
__________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Olushola Festus Omotoyo petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision to dismiss his
appeal.
I
Omotoyo is a native and citizen of Nigeria who was lawfully
*
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that this opinion should not be published and is not precedent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.
1
admitted to the United States in August 2000 as a permanent
resident. On February 2, 2004, he was convicted in Texas for
assaulting his wife, an offense for which a sentence of one year
or longer may be imposed. Omotoyo was sentenced to deferred
adjudication and twelve months community supervision.
The Department of Homeland Security (“DHS”) served Omotoyo
with a Notice to Appear (“NTA”), alleging that Omotoyo was
subject to removal from the United States pursuant to Immigration
and Naturalization Act (“INA”) § 237(a)(2)(E)(I), as amended, as
an alien who at any time after entry had been convicted of a
crime of domestic violence. The NTA also alleged that Omotoyo
was removable pursuant to INA § 237(a)(2)(A)(I), as amended,
having been convicted of a crime involving moral turpitude for
which a sentence of one year or longer may be imposed, committed
within five years after admission.
Omotoyo’s removal hearing was continued four times. At the
second hearing, the IJ found Omotoyo removable as charged, but
allowed the subsequent continuances so that Omotoyo could secure
an attorney. At the fifth hearing, Omotoyo’s attorney requested
another continuance because an I-130 visa petition would be filed
on Omotoyo’s behalf within two weeks. The IJ noted that Omotoyo
was not eligible for any relief, with the exception of voluntary
departure. The IJ declined to continue the proceedings because,
inter alia, the case had been on the docket five times and
Omotoyo had failed to apply for any relief. The IJ held that
2
Omotoyo remained removable as charged.
On October 19, 2004, Omotoyo appealed the IJ’s decision to
the BIA. On February 11, 2005, Petitioner filed a motion to
reopen proceedings with the BIA requesting that proceedings be
remanded to the IJ. Petitioner claimed that the I-130 visa
petition had now been filed on his behalf and argued that a visa
was immediately available due to his classification as an
immediate relative under INA § 201(b)(2)(A)(I), based on his
marriage to a United States citizen.
On April 21, 2005, the BIA denied Omotoyo’s request to
reopen proceedings and dismissed his appeal.
On May 16, 2005, Omotoyo filed a petition for review pro se
from the BIA’s decision.
II
We review questions of law de novo and review factual
conclusions of the BIA for substantial evidence. Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). We review an
IJ’s denial of a request to continue removal proceedings for
abuse of discretion. See Manzano-Garcia v. Gonzales, 413 F.3d
462, 467 (5th Cir. 2005) (reviewing the BIA’s denial of request
to reopen removal proceedings under an abuse of discretion
standard).
Omotoyo argues that his sentence of deferred adjudication
probation that he received was not a final conviction under the
3
Texas Code of Criminal Procedure, and thus does not amount to a
“conviction” for immigration purposes. The government urges that
this court lacks jurisdiction to consider this argument because
Omotoyo failed to raise it before the IJ. The record reveals
Omotoyo did raise this argument during the administrative
proceedings, and we have jurisdiction to review. Omotoyo bases
his argument on Martinez-Montoyo v. Immigration & Naturalization
Service, 904 F.2d 1018 (5th Cir. 1990), but that case’s holding
was superceded by statute. Moosa v. Immigration & Naturalization
Service, 171 F.3d 994, 1001-02 (5th Cir. 1999). In 1997,
Congress broadened the scope of the definition of “conviction” to
include cases in which adjudication was deferred. Id. at 1002.
Omotoyo also argues that the IJ abused his discretion in
denying Omotoyo’s request for a continuance to file an I-130 visa
petition. When the BIA denied Omotoyo’s request to reopen
proceedings, it noted that, “[n]either during any of the five
hearings, [n]or in connection with [the] motion to reopen,” did
Omotoyo submit an application for adjustment of status to the IJ.
The BIA denied Omotoyo’s motion to remand because the record did
not establish that the underlying I-130 visa petition had been
favorably adjudicated and that a visa was currently available to
Omotoyo. Therefore, the BIA found that the IJ did not act
unreasonably in denying Omotoyo’s request for a continuance. See
Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978) (holding that
an IJ should generally grant a motion to reopen or a request for
4
a continuance pending final adjudication of a visa petition filed
simultaneously with an adjustment application, if the visa
petition is prima facie approvable and the adjustment application
has in fact been submitted to him) modified on other grounds by
Matter of Arthur, 20 I&N Dec. 475 (BIA 1992); see also Witter v.
INS, 113 F.3d 549, 555 (5th Cir. 1999) (“The grant of a
continuance of a deportation hearing lies within the sound
discretion of the immigration judge, who may grant a continuance
upon a showing of good cause” (citation omitted)). The IJ did
not abuse his discretion in refusing Omotoyo’s request.
Omotoyo next argues that the IJ denied him due process when
he failed to inform Omotoyo of various forms of relief or
protection under the INA, including, inter alia, asylum and
protection under the Convention Against Torture. Omotoyo’s
argument is without merit. A due process challenge to a removal
proceeding requires a showing of substantial prejudice. Anwar v.
INS, 116 F.3d 140, 144 (5th Cir. 1997). Omotoyo has not
established that he was eligible for any form of relief of which
he was unaware. Furthermore, eligibility for discretionary
relief in an immigration proceeding is not protected by due
process. See United States v. Lopez-Ortiz, 313 F.3d 225, 331
(5th Cir. 2002). Omotoyo’s due process rights are not implicated
because it is within the IJ’s discretion to grant him relief.
Finally, Omotoyo argues that his conviction for assaulting a
family member in violation of Texas Penal Code § 22.01(a)(1) does
5
not render him removable. Section 1227(a)(2)(E)(I) of Title 8 of
the United States Code renders removable an alien convicted of a
crime of violence committed against a person protected under the
family violence laws of any state. An assault in violation of
Texas Penal Code § 22.01(a)(1) is a crime of violence. See
United States v. Shelton, 325 F.3d 553, 558-61 (5th Cir. 2003)
(holding that § 22.01(a)(1) of the Texas Penal Code is a crime of
violence for purposes of 18 U.S.C. § 921(a)(33)(A)). “Family
members” fall into the class of persons protected under the
family violence laws of Texas. TEX. PENAL CODE § 22.01(b)(2).
Omotoyo is removable.
Omotoyo argues for the first time in his reply brief that
the Due Process Clause prevents DHS from initiating removal
proceedings while he was serving a state sentence of probation.
We deem it waived. Linbrugger v. Abercia, 363 F.3d 537, 541 n.1
(5th Cir. 2004) (stating that an argument made for the first time
in a reply brief is waived).
Accordingly, we DENY Omotoyo’s petition for review of the
BIA’s decision.
6