Omonkhomon v. Ashcroft , 74 F. App'x 252 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL OMONKHOMON, 
Petitioner,
v.  No. 02-2332
JOHN ASHCROFT, Attorney General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-198-968)
Submitted: July 31, 2003
Decided: August 18, 2003
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
COUNSEL
Irena I. Karpinski, LAW OFFICE OF IRENA I. KARPINSKI, Wash-
ington, D.C., for Petitioner. Robert D. McCallum, Jr., Assistant Attor-
ney General, Terri J. Scadron, Assistant Director, Robbin K. Blaya,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 OMONKHOMON v. ASHCROFT
OPINION
PER CURIAM:
Michael Omonkhomon, a native and citizen of Nigeria, petitions
for review of a final order of the Board of Immigration Appeals
(Board) affirming the Immigration Judge’s (IJ) decision to deny Peti-
tioner’s Motion to Reconsider. The IJ declined to reconsider her deci-
sion to deny Petitioner’s application for adjustment of status and
found that in any event Omonkhomon is now statutorily barred from
that relief due to his failure to voluntarily depart the United States by
the deadline specified in the order. See 8 U.S.C. § 1252b(e)(2)(A)
(1994).*
Omonkhomon contends that the IJ violated his right to due process
by mistakenly treating his Motion to Reconsider as a motion to
reopen. We have examined the IJ’s decision and conclude this conten-
tion is meritless, as it is clear that the IJ treated the motion as one for
reconsideration and applied the proper standard. See Matter of Cerna,
20 I. & N. Dec. 399 (BIA 1991); 8 C.F.R. § 3.2(b)(1) (2003). Peti-
tioner also claims that his due process rights were violated when the
IJ intentionally delayed ruling on his Motion to Reconsider until after
the expiration of the period of voluntary departure. Our review of the
record discloses no evidence that the delay in question was inten-
tional. Nor does such a delay qualify as an exceptional circumstance
justifying Petitioner’s failure to voluntarily depart in a timely manner.
See Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999).
Omonkhomon next contends that the IJ abused her discretion in
denying his application for adjustment of status to that of lawful per-
manent resident based on his marriage to a United States citizen. Our
review discloses that this discretionary decision was not appealed by
Petitioner and was not the basis of the denial of the Motion to Recon-
*Because Omonkhomon was placed in deportation proceedings prior
to the passage of the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996, his case is governed by the prior version of the pro-
vision barring adjustment of status for an alien who has failed to
voluntarily depart. The current version of that provision is found at 8
U.S.C. § 1229c(d) (2000).
OMONKHOMON v. ASHCROFT 3
sider. Even assuming the decision were before us, we would not have
jurisdiction to review it. See Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, Pub. L. No. 104-128, 110 Stat.
3009, § 309(c)(4)(E).
We accordingly find no abuse of discretion in the decision to deny
the Motion to Reconsider. See INS v. Doherty, 502 U.S. 314, 323-24
(1992). We deny the petition for review and dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
PETITION DENIED