Gabriel Kigamba v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

GABRIEL KINYANJUI KIGAMBA, Nos. 12-73868
13-71389
Petitioner,
Agency No. A097-591-825
v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,

Respondent.

On Petitions for Review of an Order of the
Board of Immigration Appeals

Submitted March 9, 2017**
Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

After Gabriel Kigamba, a native and citizen of Kenya, overstayed his non-

immigrant visa, he applied for asylum. At some point, he obtained a document

purportedly issued by an immigration judge (“IJ”) granting that application. In 2009,

Kigamba filed an application for adjustment of status based on this document. But,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
when the government instituted removal proceedings in 2010, Kigamba admitted

removability. Although he initially told the IJ in the removal proceedings that he

intended to seek asylum, he instead moved for a continuance so that his wife, a

United States citizen, could file an I-130 petition, which could serve as the basis for

adjustment of status.

The IJ denied Kigamba’s request for a continuance, finding, among other

things, that the document that Kigamba submitted purporting to grant him asylum

was fraudulent. The Board of Immigration Appeals (“BIA”) affirmed, and also

denied a motion to remand, and denied a subsequent motion to reopen after the I-

130 petition was granted. We dismiss Kigamba’s consolidated petitions for review

in part and deny them in part.

1. We lack jurisdiction to review the BIA’s decision denying the discretionary

relief of adjustment of status. 8 U.S.C. § 1252(a)(2)(B)(i); see Bazua-Cota v.

Gonzales, 466 F.3d 747, 748 (9th Cir. 2006) (order). Although we have jurisdiction

to review colorable constitutional challenges to discretionary decisions, Kigamba’s

argument that the BIA denied him due process by failing to properly consider all of

the equities is simply “an abuse of discretion challenge re-characterized as an alleged

due process violation,” not a colorable constitutional claim.1 See Bazua-Cota, 466

1
We also dismiss Kigamba’s petitions insofar as they attack the IJ’s denial of
a continuance to allow the processing of his wife’s I-130 petition. The BIA noted
the grant of that petition in its order denying the motion to reopen, but nonetheless

2
F.3d at 748-49.

2. We do have jurisdiction to review the nondiscretionary aspects of the BIA’s

denial of Kigamba’s motions to reopen and to remand. See Medina-Morales v.

Ashcroft, 371 F.3d 520, 526-27, 531 (9th Cir. 2004). But, we deny the petitions

because the IJ’s underlying adverse credibility determination is supported by

substantial evidence in the record. See Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th

Cir. 2007). The IJ reasonably concluded that Kigamba had submitted fraudulent

evidence of a grant of asylum, offering only an “absurd” explanation as to why he

believed that he had been granted asylum.

PETITIONS DISMISSED IN PART AND DENIED IN PART.

determined that Kigamba “would not be entitled to the discretionary grant of relief
which he sought,” INS v. Doherty, 502 U.S. 314, 323 (1992), a determination not
subject to judicial review, see Bazua-Cota, 466 F.3d at 748.