Case: 13-60781 Document: 00512658826 Page: 1 Date Filed: 06/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60781
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 10, 2014
JONAS MALM,
Lyle W. Cayce
Clerk
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. A096 032 108
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Jonas Malm, a native and citizen of Ghana, entered the United States in
February 2001 on a nonimmigrant visitor’s visa but remained in the United
States after his visa expired. He now petitions this court for review of an order
of the Board of Immigration Appeals (BIA) upholding the decision of the
immigration judge (IJ) denying his request for cancellation of removal. We
review the BIA’s order and will consider the underlying decision of the IJ to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60781
the extent that it influenced the BIA’s determination. Sharma v. Holder, 729
F.3d 407, 411 (5th Cir. 2013).
The primary thrust of Malm’s petition is that the BIA erred in
determining that he was ineligible for cancellation of removal based on his
prior conviction for assault causing bodily injury, which the BIA determined to
be a crime involving moral turpitude. Though we generally lack jurisdiction to
review the decision to deny discretionary relief, including cancellation of
removal, see 8 U.S.C. §§ 1252(a)(2)(B)(i), 1129b, we nonetheless retain the
authority to review “questions of law,” § 1252(a)(2)(D), including whether the
BIA properly determined that an alien committed a crime involving moral
turpitude. See Hyder v. Keisler, 506 F.3d 388, 390 (5th Cir. 2007).
The Attorney General has the authority to cancel the removal of a
deportable nonresident alien if the alien meets certain conditions. See
§ 1229b(b)(1). However, an alien who has been convicted of a crime involving
moral turpitude is ineligible for this relief. § 1229b(b)(1)(C); 8 U.S.C. Malm
was convicted of violating Texas Penal Code § 22.01(a)(1), which prohibits
“intentionally, knowingly, or recklessly caus[ing] bodily injury to another.” We
previously have upheld the BIA’s determination that an alien’s conviction
under this statute qualifies as a crime involving moral turpitude. Esparza-
Rodriguez v. Holder, 699 F.3d 821, 823-24 (5th Cir. 2012). Accordingly, the
BIA did not err in determining that Malm was ineligible for cancellation of
removal.
Malm also challenges the BIA’s decision that he was not entitled to a
continuance to pursue his I-360 petition. Because he committed a crime
involving moral turpitude as defined in § 1182(a)(2) and thus is removable on
this basis and because he fails to raise any legal or constitutional questions
regarding the denial of the continuance, we lack jurisdiction to consider this
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issue. See § 1252(a)(2)(C) & (D); Ogunfuye v. Holder, 610 F.3d 303, 307 (5th
Cir. 2010); Rodriguez-Castro v. Gonzales, 427 F.3d 316, 318-19 & n.1 (5th Cir.
2005).
Contending that he was denied a fair hearing, Malm goes on to assert
that the IJ questioned Malm’s wife outside of his presence, then ordered her to
leave and accused him of marrying her so that he could remain in the United
States. He also faults the IJ for declining to receive into evidence certain
documents and accuses the IJ of partiality. Malm, though, points to no
evidence in the record regarding any improper behavior by the IJ or any
evidence that the IJ had a personal interest in the outcome of the proceedings.
Moreover, given the denials of administrative relief and the IJ’s correct
determination that Malm had committed a crime involving moral turpitude
and thus was ineligible for cancellation of removal, he has not shown how he
was substantially prejudiced. See Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir.
1997).
Next, Malm challenges the denial of his wife’s I-130 applications through
which she sought to adjust his status based on the couple’s marriage, asserting
that the Department of Homeland Security incorrectly determined that the
marriage was not bona fide and was entered into to evade immigration laws.
We do not have jurisdiction to consider this issue on a petition for review of a
final order of removal from the BIA, and instead Malm must first pursue relief
in the district court. See § 1252(a); 28 U.S.C. § 1291; 5 U.S.C. § 702 (judicial
review of agency action); Ayanbadejo v. Chertoff, 517 F.3d 273, 277-78 (5th Cir.
2008).
Finally, Malm attacks the IJ’s repeated refusal to grant him bond and
requests a bond hearing, but we lack jurisdiction to review the denial of bond.
8 U.S.C. § 1226(e).
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Accordingly, Malm’s petition for review is DENIED in part and
DISMISSED for lack of jurisdiction in part. His motion for appointment of
counsel is also DENIED.
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