Antony Waweru v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [11-60187 Affirmed] Judge: CDK , Judge: EGJ , Judge: JES. Mandate pull date is 02/27/2012 [11-60187]

Case: 11-60187

Document: 00511713815

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Date Filed: 01/04/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-60187
Summary Calendar

January 4, 2012
Lyle W. Cayce
Clerk

ANTONY MUGO WAWERU,
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. A088 878 176

Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
Antony Mugo Waweru, a native and citizen of Kenya, petitions this court
for review of a decision of the Board of Immigration Appeals (BIA) dismissing his
appeal from a final order of removal, wherein the immigration judge (IJ) denied
Waweru’s applications for a waiver of inadmissibility and for adjustment of
status. He argues that his due process rights were violated by ineffective
assistance of counsel and that the IJ applied the wrong legal standards when

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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considering his affidavit in support of his application for adjustment of status
and when considering his application for a waiver of inadmissibility.
A federal court’s jurisdiction over an immigration proceeding is governed
by 8 U.S.C. § 1252. Section 1252(a)(2)(C) “generally prohibits judicial review of
‘any final order of removal against an alien who is removable by reason of having
committed’ certain designated criminal offenses.” Larin-Ulloa v. Gonzales,
462 F.3d 456, 460-61 (5th Cir. 2006); see also § 1252(a)(2)(C). Because the IJ
determined that Waweru was removable based on his conviction of two crimes
involving moral turpitude, this court would ordinarily lack jurisdiction to review
that order.

However, § 1252(a)(2)(D) provides that judicial review of

“constitutional claims or questions of law” is not precluded. Larin-Ulloa, 462
F.3d at 461.
We review the BIA’s findings of fact for substantial evidence and its legal
determinations de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). This court reviews the BIA’s decision and the decision of the IJ to the
extent that it influenced the BIA. Zhu v. Gonzales, 493 F.3d 588, 593-94 (5th
Cir. 2007).
Waweru argues that his right to due process was violated because his
counsel rendered ineffective assistance when she failed to list both crimes that
rendered Waweru inadmissible on his application for a waiver of inadmissibility.
He argues that he was prejudiced by counsel’s actions because, had both crimes
been included on the application, it is “more likely than not that the IJ could
have granted the waiver giving him an opportunity to pursue his adjustment of
status based on his marriage to an American citizen.”
As the Government correctly notes, this court has previously held that an
alien in removal proceedings does not have a Sixth Amendment right to effective
assistance of counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
While “this court has repeatedly assumed without deciding that an alien’s claim
of ineffective assistance may implicate due process concerns under the Fifth
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Amendment,” see id., that is not the case here.

Waweru seeks purely

discretionary relief in the form of a waiver of inadmissibility and adjustment of
status. See Martinez v. Mukasey, 519 F.3d 532, 542 (5th Cir. 2008); Hadwani v.
Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). Because the failure to obtain
discretionary relief does not constitute the deprivation of a liberty interest,
Waweru has not due process right to effective assistance of counsel in pursuit of
that relief. See Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
Waweru argues that the IJ incorrectly interpreted the financial affidavit
in support of his application for adjustment of status and erroneously
determined that he was financially ineligible for relief. The IJ, in his oral
opinion, did determine that Waweru was financially ineligible for relief;
however, in his subsequent written opinion, the IJ amended his oral order,
concluding that the supporting affidavit established that Waweru met the
financial requirements for relief. Therefore, this argument is without merit.
Finally, Waweru argues that the IJ applied the wrong legal standard when
determining whether he had demonstrated he was eligible for a waiver of
inadmissibility. Waweru contends that the IJ applied the “exceptional and
extremely unusual hardship” standard, which is reserved for people who have
committed violent or dangerous crimes. Contrary to Waweru’s assertion, there
is no evidence in the record that either the IJ or the BIA required Waweru to
satisfy a heightened standard for relief. Therefore, this argument is without
merit. Accordingly, the petition for review is DENIED.

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