Case: 12-60862 Document: 00512439503 Page: 1 Date Filed: 11/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2013
No. 12-60862
Summary Calendar Lyle W. Cayce
Clerk
JORGE SALAZAR MARTINEZ,
Petitioner
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 894 860
Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM:*
Jorge Salazar-Martinez (Salazar) petitions this court for review of the
decision of the Bureau of Immigration Appeals (BIA) dismissing his appeal from
the decision of the Immigration Judge (IJ) denying his application for
adjustment of status to permanent resident pursuant to 8 U.S.C. § 1255.
This court “has the authority to review only the BIA’s decision, not the IJ’s
decision, unless the IJ’s decision has some impact on the BIA’s decision.” Wang
v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Thus, the court’s review herein is
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60862
limited to the BIA’s adoption of the IJ’s determination that Salazar was not
entitled to relief in the exercise of discretion. Therefore, the court lacks
jurisdiction to address Salazar’s argument that the IJ erred in determining that
Salazar had not established by clear and convincing evidence that his marriage
was bona fide or his argument that the IJ found him inadmissible for adjustment
of status because he was an alien who is likely at any time to become a public
charge.
Salazar argues that the IJ applied the incorrect standard of law in
exercising his discretion. He contends that the adverse factors relied on by the
IJ have not been treated as adverse in immigration proceedings and, thus, the
IJ applied the incorrect standard in requesting that he provide unusual or
outstanding equities to rebut those factors.
This court is statutorily barred from reviewing the IJ’s and BIA’s purely
discretionary denial of Salazar’s application for adjustment of status to
permanent resident filed pursuant to § 1255. See Ayanbadejo v. Chertoff, 517
F.3d 273, 275, 276-78 & 277 n.11 (5th Cir. 2008); Hadwani v. Gonzales, 445 F.3d
798, 800 (5th Cir. 2006). This court is not precluded from reviewing claims
raising constitutional or purely legal questions. See 8 U.S.C. § 1252(a)(2)(D).
Despite the fact that a petitioner’s purported challenge to the BIA’s standard of
review is phrased as a question of law, the court lacks jurisdiction to consider
that challenge if it was actually a request to review the denial of discretionary
relief. Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006).
Relying on the standard announced in Matter of Arai, 13 I. & N. Dec. 494
(BIA 1970), the IJ considered all the positive and adverse factors in Salazar’s
case in determining that relief was not warranted as a matter of discretion.
Salazar has not provided evidence to support his conclusional assertion that the
multiple adverse factors cited affect the majority of young couples. Salazar has
not raised a substantial legal or constitutional question in that he is merely
challenging the IJ’s balancing of the factors that were present in his case. This
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No. 12-60862
determination was a discretionary decision, which the court lacks jurisdiction to
review. See § 1252(a)(2)(B),(D); Delgado-Reynua, 450 F.3d at 599-600; Hadwani,
445 F.3d at 800. Therefore, the petition for review is DISMISSED for lack of
jurisdiction.
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