Case: 10-60092 Document: 00511398795 Page: 1 Date Filed: 03/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2011
No. 10-60092
Summary Calendar Lyle W. Cayce
Clerk
HASMUKHBHAI LAD,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 561 998
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Hasmukhbhai Lad, a native and citizen of India, petitions this court for
review of the decision of the Board of Immigration Appeals (BIA) denying his
motion to reopen removal proceedings. He entered the United States without
being admitted or paroled in March 1994. In May 2004, Lad married Vaishali
Babybhai Mistry, a native of India and a lawful permanent resident of the
United States. Vaishali petitioned for a relative visa for Lad in 2005, and she
became a United States citizen in 2008.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60092
Meanwhile, on August 26, 2004, the Department of Homeland Security
(DHS) charged that Lad was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i)
as an inadmissible alien who was present in the United States without having
been admitted or paroled. Lad admitted the charge, but sought cancellation of
removal under 8 U.S.C. § 1229b(b) and requested voluntary departure. The IJ
denied the request for cancellation of removal, granted Lad voluntary departure,
and entered an alternate order of removal to India that would become effective
if Lad failed to depart voluntarily by January 14, 2008. The BIA dismissed Lad’s
appeal of the IJ’s order on March 10, 2009, and Lad did not petition this court
for review of that decision.
On May 12, 2009, the United States Citizenship and Immigration Services
(USCIS) denied Vaishali’s visa petition, on the ground that Lad was ineligible
for a visa under 8 U.S.C. § 1154(c), which prohibits the approval of a visa
petition if “the Attorney General has determined that the alien has attempted
or conspired to enter into a marriage for the purpose of evading the immigration
laws.” Lad moved the BIA to reopen his removal proceedings, arguing that
because his wife’s visa petition had been denied, his case should be remanded to
the IJ in order so that Lad could apply for a waiver of removal 8 U.S.C.
§ 1227(a)(1)(H). The BIA denied the motion, and Lad timely filed a petition for
review of that decision.
Lad contends that the immigration judge (IJ) violated his due process
rights by failing to sustain his repeated objections to the translator’s
interpretations during a hearing before the IJ, but we lack jurisdiction over this
claim, which pertains to the underlying deportation order, because Lad only filed
a petition for review of the denial of his motion to reopen. See Stone v. INS, 514
U.S. 386, 394-95 (1995) (citing 8 U.S.C. § 1105a(a)(6) (1988 Supp. V) (recodified
as amended at 8 U.S.C. § 1252(b)(6))). Likewise, to the extent that Lad argues
that his motion to reopen should have been granted on the same basis, 8 U.S.C.
§ 1252(d)(1) bars our review of the claim because Lad made no such argument
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No. 10-60092
in his motion to reopen before the BIA. Accordingly, we dismiss Lad’s petition
in part for lack of jurisdiction.
Lad also argues that the BIA abused its discretion in denying his motion
to reopen. Motions to reopen removal proceedings are disfavored, and the
moving party bears a heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d
547, 549 (5th Cir. 2006). In reviewing the BIA’s denial of a motion to reopen or
reconsider, we apply a “highly deferential abuse-of-discretion standard.” Id. We
will affirm the BIA’s decision “so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Zhao v.
Gonzales, 404 F.3d 295, 301 (5th Cir. 2005) (internal quotations marks and
citation omitted).
Lad apparently believes that he is eligible under § 1227(a)(1)(H) for a
waiver, and that this waiver would eliminate not only his removability but also
his inadmissibility. He seems to believe that the elimination of his
inadmissibility through the waiver would in turn allow him to adjust his status,
perhaps under § 1255. Lad also asserts that the pendency of his wife’s relative
visa petition somehow prevented him from seeking a § 1227(a)(1)(H) waiver
earlier, and that this is the fault of the USCIS because it did not process the visa
petition more quickly.
Despite Lad’s suggestion that the denial of his wife’s relative visa petition
makes a § 1227(a)(1)(H) waiver newly available to him, DHS regulations
specifically state that an alien “may apply to the immigration judge” for a waiver
of a ground of inadmissibility “[i]n conjunction with any application for creation
of status of an alien lawfully admitted for permanent residence made to an
immigration judge.” 8 C.F.R. § 1240.11(a)(2). In fact, the record shows that the
IJ asked whether Lad would be seeking any relief in addition to cancellation of
removal and voluntary departure, and Lad declined to seek additional relief.
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In addition, Lad is not eligible for a § 1227(a)(1)(H) waiver of the removal
of aliens “on the ground that they were inadmissible at the time of admission as
aliens described in section 1182(a)(6)(C)(i)” because that provision restricts such
waivers to aliens who are “in possession of an immigrant visa or equivalent
document and [are] otherwise admissible to the United States at the time of such
admission except for those grounds of inadmissibility specified under paragraphs
(5)(A) and (7)(A) of section 1182(a).” Lad does not have an immigrant visa as
required by § 1227(a)(1)(H) because his wife’s relative visa petition has been
denied, and he is not “otherwise admissible” as required by § 1227(a)(1)(H)
because he has already conceded his inadmissibility under § 1182(a)(6)(A)(i) as
an alien who was present in the United States without having been admitted or
paroled. Accordingly, Lad has failed to show that the BIA abused its discretion
in denying his motion reopen, and we deny his petition for review in remaining
part. See Altamirano-Lopez, 435 F.3d at 549.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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