Stanley Nwosuocha v. Eric Holder, Jr. , 537 F. App'x 453 ( 2013 )

Case: 12-60349 Document: 00512322267 Page: 1 Date Filed: 07/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2013
No. 12-60349
Summary Calendar Lyle W. Cayce
Clerk
STANLEY ODINAKACHUKWU NWOSUOCHA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A076 824 072
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Stanley Odinakachukwu Nwosuocha, a native and citizen of Nigeria,
petitions for review of the decisions of the Board of Immigration Appeals (“BIA”)
denying him relief from an order of removal, denying remand in light of an
unadjudicated visa petition filed on his behalf by his current wife, and denying
his post-appeal motion to reopen. Nwosuocha does not challenge the
determination that he is removable, but he does argue that his due process
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60349
rights were violated because he was unable to adjust his status based upon his
current marriage to a United States citizen.
In rejecting Nwosuocha’s motion to reopen and remand based on the visa
petition of his current wife, to whom he was married during his removal
proceedings, the BIA observed that the Department of Homeland Security
(“DHS”) opposed the motion. The DHS pointed to record evidence that
Nwosuocha had previously contracted a fraudulent marriage with a United
States citizen in order to obtain an adjustment of his immigration status. The
BIA also observed that Nwosuocha had failed to address the record evidence on
this point. Ultimately, the BIA concluded that Nwosuocha would be unable to
demonstrate prima facie eligibility for adjustment of status on remand.
A remand motion “filed during the pendency of an appeal” is substantively
“a motion to reopen.” In re L-V-K, 22 I. & N. Dec. 976, 978-79 (BIA 1999).
Motions to reopen “are disfavored, and the moving party bears a heavy burden.”
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006) (quotation
marks omitted). We employ a “highly deferential abuse-of-discretion standard”
when reviewing the denial of a motion to reopen. Zhao v. Gonzales, 404 F.3d
295, 303 (5th Cir. 2005); see Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir.
1992).
To be eligible for adjustment of status, an alien must, among other
requirements, have “an immigrant visa . . . immediately available to him at the
time his application is filed.” 8 U.S.C. § 1255(a). Nwosuocha does not argue that
his current wife’s visa petition has been approved; indeed, he acknowledges that
the DHS has issued notice of its intent to deny that petition. Nor does
Nwosuocha show that a visa would be immediately available if he applied for
adjustment of status on remand. Nwosuocha thus fails to show that the BIA’s
rejection of his request for remand pending the adjudication of his current wife’s
visa petition was legal error. See Diaz-Resendez, 960 F.2d at 495. He also fails
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No. 12-60349
to show the rejection was “so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Zhao, 404 F.3d at 304.
Additionally, given Nwosuocha’s concession that nothing his prior counsel
did was necessarily wrong, there is no merit to the claim that prior counsel
caused Nwosuocha to be deprived of due process. See Patel v. INS, 803 F.2d 804,
805-06 (5th Cir. 1986). Although Nwosuocha claims that his pre-BIA
proceedings were fundamentally unfair because of procedural deprivations, he
did not brief such a claim to the BIA before his appeal was dismissed. We
therefore lack jurisdiction to consider such a claim, unless it was later properly
urged in a motion to reopen. Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334-
36 (5th Cir. 2008). Nwosuocha’s post-appeal motion to reopen to urge a claim of
fundamental unfairness caused by procedural defects was properly rejected by
the BIA because the motion addressed matters that occurred before the case
went to the BIA, i.e., matters that could have been – but were not – raised before
the BIA earlier. 8 C.F.R. § 1003.2(c)(1); see also Manzano-Garcia v. Gonzales,
413 F.3d 462, 470 (5th Cir. 2005). Additionally, we are without jurisdiction to
review the BIA’s decision not to reopen the proceedings sua sponte. See Ramos-
Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008); 8 C.F.R. § 1003.2(a).
Nwosuocha moves to supplement the record with a copy, which may be
incomplete, of DHS’s notice of intent to deny his current wife’s visa application.
We may not consider documents that were not part of the administrative record,
and the motion is denied. 8 U.S.C. § 1252(b)(4)(A); see also Mei He v. Holder, 442
F. App’x 172, 175 (5th Cir. 2011).
PETITIONS DENIED IN PART AND DISMISSED IN PART; MOTION
TO SUPPLEMENT DENIED.
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