Case: 09-60445 Document: 00511074498 Page: 1 Date Filed: 04/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 8, 2010
No. 09-60445
Summary Calendar Lyle W. Cayce
Clerk
ABIODUN OYEWAL OSIBAMOWO,
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. A074 559 444
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Abiodun Oyewal Osibamowo, a native and citizen of Nigeria, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal of the removal order of the immigration judge (IJ). The
IJ denied Osibamowo’s request for cancellation of removal after concluding that
Osibamowo had not demonstrated that his removal would cause his wife or sons
exceptional and extremely unusual hardship. Osibamowo argues that the
Bureau of Citizenship and Immigration Services and the BIA improperly
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-60445 Document: 00511074498 Page: 2 Date Filed: 04/08/2010
No. 09-60445
adjudicated and delayed adjudication of his wife’s applications on his behalf for
adjustment of status. He also argues that the IJ improperly denied his request
for a continuance while the second of these applications was pending.
A court can review a final order of removal only when “the alien has
exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). “Failure to exhaust an issue creates a jurisdictional bar
as to that issue.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). “An alien
fails to exhaust his administrative remedies with respect to an issue when the
issue is not raised in the first instance before the BIA - either on direct appeal
or in a motion to reopen.” Id. Because Osibamowo did not raise the above issues
before the BIA and does not argue due process violations “except for procedural
errors that are correctable by the BIA,” we lack jurisdiction to consider these
issues. Id.
Next, Osibamowo argues that the IJ erred in finding that he had not
demonstrated the requisite hardship under 8 U.S.C. § 1229b(b)(1)(D). However,
we lack jurisdiction to review this issue because the IJ’s hardship determination
was a discretionary decision rather than a legal or nondiscretionary decision.
See § 1252(a)(2)(B); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004).
Last, Osibamowo argues that the BIA erred by holding him to a new, non-
retroactive standard in denying his ineffective assistance of counsel claim.
Although Osibamowo listed ineffective assistance of counsel in his notice of
appeal as an issue he intended to appeal to the BIA, his brief to the BIA
contained no argument on or analysis of that issue. “[W]hen a petitioner does
file a brief, the BIA is entitled to look to the brief for an explication of the issues
that petitioner is presenting to have reviewed. Petitioner will therefore be
deemed to have exhausted only those issues he raised and argued in his brief
before the BIA.” Abebe v. Mukasey, 548 F.3d 787, 791 (9th Cir. 2008) (emphasis
added). As Osibamowo’s claim of ineffective assistance of counsel is
2
Case: 09-60445 Document: 00511074498 Page: 3 Date Filed: 04/08/2010
No. 09-60445
unexhausted, we lack jurisdiction to review it. See Roy, 389 F.3d at 137.
The petition for review is DISMISSED for lack of jurisdiction.
3