Abdul-Khaliq v. Garland ( 2022 )

Case: 20-60747 Document: 00516340696 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 20-60747
Summary Calendar Lyle W. Cayce
Clerk
Heithem Mohammad Abdul-Khaliq, also known as Heithen
Abdul, also known as Heithem Khaliq, also known as Heithen
Mohammed Khaliq, also known as Abdul Khaliq, also known as
Heithen Khaliq,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A042 381 990
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Heithem Mohammad Abdul-Khaliq, a native and citizen of Saudi
Arabia, petitions for review of the Board of Immigration Appeals’ (BIA)
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60747 Document: 00516340696 Page: 2 Date Filed: 06/02/2022
No. 20-60747
denying his motion to reopen his removal proceedings, in which his
application for cancellation of removal for certain permanent residents, 8
U.S.C. § 1229b(a), was denied. He asserts the BIA: failed to accept
evidence; based its decision on an incorrect legal standard; did not articulate
the reasons for denying his motion to reopen; and violated his due-process
rights.
Questions of jurisdiction are, of course, reviewed de novo. E.g.,
Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). Our court generally
lacks jurisdiction to review the discretionary denial of an application for
cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i) (noting court does not
have jurisdiction over “any judgment regarding the granting of relief under
section . . . 1229b”). Petitioner “cannot manufacture jurisdiction” by
petitioning for review of a motion to reopen when our court would lack
jurisdiction to review a petition challenging a decision following an appeal to
the BIA. Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004).
Regarding the assertions that the BIA failed to accept evidence and
based its decision on an incorrect legal standard, we have jurisdiction to
address constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D).
These assertions, however, amount to a request for reconsideration of the
BIA’s discretionary decision couched in legal terms, which does not confer
jurisdiction. See Delgado-Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th Cir.
2006) (dismissing for lack of jurisdiction when discretionary issue phrased as
question of law).
The contention that the BIA erred by failing to sufficiently explain its
decision denying the motion to reopen is unexhausted, which also deprives
of us jurisdiction to hear that claim. See Martinez-Guevara v. Garland, 27
F.4th 353, 360 (5th Cir. 2022) (explaining challenges “aris[ing] only as a
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Case: 20-60747 Document: 00516340696 Page: 3 Date Filed: 06/02/2022
No. 20-60747
consequence of the Board’s error” unexhausted unless presented to BIA in
motion to reconsider (emphasis in original) (citation omitted)).
Finally, the claim that the BIA’s decision not to reopen the
proceedings violated Abdul-Khaliq’s due-process rights is not cognizable.
See Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (explaining “no
liberty interest exists in a motion to reopen, and therefore due process claims
are not cognizable in the context of reopening proceedings”).
DISMISSED in part; DENIED in part.
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