NOT FOR PUBLICATION FILED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.
3