Hadwani v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2006

_______________________ Charles R. Fulbruge III
Clerk
No. 05-60066
Summary Calendar
_______________________

RAMZAN JIWAN HADWANI,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

_________________________________________________________________

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75-910-339
________________________________________________________________
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:

Ramzan Jiwan Hadwani petitions for review of the Board of

Immigration Appeals’ (“BIA’s”) affirmance, without opinion, of an

Immigration Judge’s (“IJ’s”) denial of his application for

adjustment of status. Because this court lacks jurisdiction to

review the denial of discretionary relief under 8 U.S.C. § 1255 and

the constitutional claims presented here are without merit,

Hadwani’s petition is DENIED.

Hadwani is a citizen and national of India who legally

entered the United States in 1995 with authorization to remain in
the country for a period not to exceed six months. Hadwani

remained in the United States beyond his allotted six months

without authorization, and on March 2, 2000, the INS issued a

Notice to Appear, charging him with removability. Hadwani conceded

removability before the IJ, but sought relief from removal through

adjustment of status under 8 U.S.C. § 1255.1 An IJ determined that

Hadwani was statutorily eligible for adjustment of status, but

declined to adjust Hadwani’s status as a matter of discretion. In

declining to exercise his discretion, the IJ noted that Hadwani had

“deliberately, negligently, and willfully” failed to disclose the

fact that he had previously been arrested for selling alcohol to a

minor, and had illegally worked in the United States. The BIA

summarily affirmed the IJ on appeal, and Hawani then brought this

petition for review, arguing that he was improperly denied

adjustment of status, and that such denial of relief violated his

Fifth Amendment rights.

As an initial matter, we must determine whether this

court has jurisdiction to review the decision of the BIA. This

court reviews questions of jurisdiction de novo. Nehme v. INS, 252

1
Hadwani initially sought relief in the form of withholding of removal.
An IJ denied relief, but the BIA on appeal remanded Hadwani’s case to the IJ for
a hearing on his application for adjustment of status. On appeal, Hadwani does
not raise any issues related to either withholding of removal or his earlier
request for asylum. Such issues are therefore deemed abandoned. Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Peavy v. WFAA-TV, Inc., 221 F.3d
158, 179 (5th Cir. 2000).

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F.3d 415, 420 (5th Cir. 2001). Although this court generally

reviews only the decision of the BIA on petitions for review, we

may review an IJ’s decision when, as here, the BIA affirms without

opinion. Thuri v. Ashcroft, 380 F.3d 788, 791 (5th Cir. 2004).

The status of an alien “may be adjusted by the Attorney

General, in his discretion and under such regulations as he may

prescribe,” provided that “(1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately available to

him at the time his application is filed.” 8 U.S.C. § 1255. The

IJ held that Hadwani was statutorily eligible for adjustment of

status. As such, this petition solely concerns the IJ’s subsequent

exercise of discretionary authority to deny relief.

8 U.S.C. § 1252 (a)(2)(B)(I) unambiguously states that

“no court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under [INA] section. . . 245

[codified in 8 U.S.C. § 1255].” This court has held that the

jurisdictional bar in 8 U.S.C. § 1252 (a)(2)(B) “precludes review

only of discretionary decisions” of the BIA. Mireles-Valdez v.

Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003)(emphasis in original).

Thus, consistent with Mireles-Valdez and the plain language of

8 U.S.C. § 1252 (a)(2)(B)(I), we join a number of our sister

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circuits in holding that we lack jurisdiction over petitions for

review concerning the discretionary denial of relief under 8 U.S.C.

§ 1255. See Zheng Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir.

2005) (“[Section 1252(a)(2)(B)(I)] plainly forecloses review of the

Attorney General’s exercise of discretion in granting adjustment of

status in individual cases”); Ekasinta v. Gonzales, 415 F.3d 1188,

1191 (10th Cir. 2005); Succar v. Ashcroft, 394 F.3d 8, 19 n.15 (1st

Cir. 2005); Pilica v. Ashcroft, 388 F.3d 941, 945 (6th Cir. 2004);

Boykov v. Ashcroft, 383 F.3d 526, 531 (7th Cir. 2004).

Hadwani also raises constitutional claims in his petition

for review. The REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,

amended 8 U.S.C. § 1252(a)(2) to ensure that this court retains

jurisdiction over “constitutional claims or questions of law”

raised in an alien’s petition for review. 8 U.S.C.

§ 1252(a)(2)(D). However, the constitutional claims raised in this

case are without merit. The Fifth Amendment affords an alien the

right to “(1) notice of the charges against him, (2) a hearing

before an executive or administrative tribunal, and (3) a fair

opportunity to be heard.” Manzano-Garcia v. Gonzales, 413 F.3d

462, 470 (5th Cir. 2005). The record indicates, and Hadwani does

not appear to dispute, that these requirements were met in his

case. Hadwani instead argues that the IJ’s denial of discretionary

relief amounted to a constitutional violation. Such an argument

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has previously been rejected by this court. See Assad v. Ashcroft,

378 F.3d 471, 475 (5th Cir. 2004)(“[T]he failure to receive relief

that is purely discretionary in nature does not amount to a

deprivation of a liberty interest.”). Hadwani’s constitutional

claim is “an abuse of discretion argument [cloaked] in

constitutional garb,” and as such, it must be rejected. Torres-

Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).

This court lacks jurisdiction to review the denial of

discretionary relief under 8 U.S.C. § 1255, and Hadwani’s

constitutional claims are without merit. His petition for review

is therefore DENIED.

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