Tariq v. Gonzales

Filing 920061013

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 13, 2006 Charles R. Fulbruge III Clerk No. 05-60784 Summary Calendar MUHAMMAD TARIQ, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. -------------------Petition for Review of an Order of the Board of Immigration Appeals BIA No. A78 565 762 -------------------Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Muhammad Tariq petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to reopen. Tariq

has abandoned the petition for review from the BIA's dismissal of his appeal from the denial of his application for asylum and withholding of removal. Tariq contends that the BIA erred by requiring him to support his motion to reopen with evidence that his application for labor certification had been approved. He asserts that this

amounted to an improper adjudication of the adjustment of status 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-60784 -2issue by the BIA and that the BIA's failure to reopen the proceedings and remand the matter to the immigration judge deprived Tariq of his due process right to seek an adjustment of status. The denial of a motion to reopen is reviewed for abuse of discretion. 1997). De Morales v. INS, 116 F.3d 145, 147 (5th Cir.

A successful motion to reopen must establish a prima

facie case of eligibility for the underlying relief sought. See INS v. Abudu, 485 U.S. 94, 104 (1988). Pursuant to 8 U.S.C. § 1255(i), an alien physically present in the United States may apply for an adjustment of status to become a permanent resident if he is a beneficiary of an application for a labor certification that was filed before April 30, 2001. The Attorney General may adjust the status of an alien

who has received a labor certification if "(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed." § 1255(i)(2). The filing of a labor certification

does not vest an alien with any right to relief from removal but is merely one step in the "long and discretionary process" of obtaining an adjustment of status under § 1255(i). Gonzales, 447 F.3d 433 438-39 (5th Cir. 2006). The BIA did not abuse its discretion in determining that Tariq had not met his burden to make a prima facie showing that Ahmed v.

No. 05-60784 -3he was eligible for relief under § 1255(i). Because such relief

is discretionary, Tariq also has failed to show any due process violation. See Ahmed, 447 F.3d at 440.

The petition for review is DENIED.