United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-60043
Summary Calendar
MOHAMMAD AMIN SAYANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A79 005 375
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mohammad Amin Sayani petitions for review of the Board of
Immigration Appeals’ (BIA) denial of his motion to reopen removal
proceedings. Sayani contends that the BIA abused its discretion
in denying his motion to reopen, which raised the claims that
counsel was ineffective for failing to inform the Immigration
Judge (IJ) that Sayani was eligible for adjustment of status
pursuant to 8 U.S.C. § 1255(i) and that counsel’s failure
violated his right to due process with regard to his adjustment
of status application.
*
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this opinion should not be published and is not precedent except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.
No. 06-60043
-2-
The BIA determined that Sayani had not demonstrated that he
was prejudiced by counsel’s allegedly deficient performance
because Sayani was not statutorily eligible for adjustment of
status. Sayani argues that he is statutorily eligible for
adjustment of status under § 1255(i) because he is the
beneficiary of a family-based visa petition filed on his behalf
by his brother before April 30, 2001, and because he has a job
offer and is the beneficiary of a labor certification filed on
his behalf on April 30, 2001. However, these show only that
Sayani was eligible to apply for adjustment, see
§ 1255(i)(1)(B)(i), (ii), not that he was eligible for
adjustment. See § 1255(i)(2); Ahmed v. Gonzales, 447 F.3d 433,
438-39 (5th Cir. 2006).
Although Sayani asserts a constitutional claim of
ineffective assistance of counsel grounded on a due process
argument, he has failed to allege a violation of due process.
“This circuit has repeatedly held that discretionary relief from
removal, including an application for an adjustment of status, is
not a liberty or property right that requires due process
protection.” Ahmed, 447 F.3d at 440 (citations omitted).
Because Sayani has no due process right to adjustment of status
under § 1255(i), he has “no due process right to effective
assistance of counsel in pursuit of that relief.” See Gutierrez-
Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). Likewise,
his due process rights were not violated by the BIA’s denial of
No. 06-60043
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his motion to reopen despite that he has never been able to
adjudicate before the IJ his application for adjustment of
status. See id. at 609-10. Nor did he have a due process right
to a continuance of the removal proceedings. See Ahmed, 447 F.3d
at 440.
The petition for review is DENIED.