United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-60441
Summary Calendar
BROWN EKELEDO OKORONKWO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A27 172 234
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The prior opinion of this Court is withdrawn and the
following is substituted.
Brown Ekeledo Okoronkwo, a native and citizen of Nigeria,
petitions for review of an order of the Board of Immigration
Appeals (BIA) denying his motion for reconsideration.
First, Okoronkwo argues that the BIA incorrectly determined
that his state conviction for aggravated assault, which had been
vacated, was still valid for immigration purposes. Because the
appellant did not appeal the BIA’s decision upholding the
*
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this opinion should not be published and is not precedent except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. 06-60441
-2-
immigration judge’s deportation order, the only decision before
us is the BIA’s denial of the appellant’s motion for
reconsideration. Thus, rather than reviewing the BIA’s legal
findings de novo, we review its decision to not reconsider its
earlier determination under the highly deferential abuse of
discretion standard. Singh v. Gonzales, 436 F.3d 484, 487 (5th
Cir. 2006) (citation omitted). We must affirm the BIA’s decision
unless it is “capricious, racially invidious, utterly without
foundation in evidence, or otherwise so irrational that it is
arbitrary.” Id. Here, the BIA adhered to precedent that it
reasonably believed to be valid. Therefore, regardless of the
actual status of Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th
Cir. 2002), the BIA did not abuse its discretion in denying the
appellant’s motion for reconsideration.
Second, Okoronkwo argues that the immigration judge erred in
denying his request for a hardship waiver under § 216(c)(4)(B) of
the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(B).
Our Court lacks jurisdiction to review the BIA’s refusal to grant
reconsideration of its decision that Okoronkwo was not entitled
to a waiver under § 1186a(c)(4)(B). See Assaad v. Ashcroft, 378
F.3d 471, 474-75 (5th Cir. 2004).
DENIED IN PART AND DISMISSED IN PART FOR LACK OF
JURISDICTION.