Gandhi Morka v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-60236 Affirmed in Part and Dismissed in Part for Lack of Jursdiction] Judge: WED , Judge: LHS , Judge: SAH. Mandate pull date is 04/07/2014; denying motion to appoint counsel filed by Petitioner Mr. Gandhi Ben Morka [7335660-2] [13-60236]

Case: 13-60236

Document: 00512533199

Page: 1

Date Filed: 02/14/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60236
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 14, 2014

GANDHI BEN MORKA,
Petitioner

Lyle W. Cayce
Clerk

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 085 784
Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
Gandhi Ben Morka petitions for review of the Board of Immigration
Appeals’s (BIA) decision affirming the Immigration Judge’s (IJ) order denying
him a change of venue and relief under the Convention Against Torture (CAT).
He first contends that the BIA and IJ erred in admitting an uncertified
criminal judgment to find that his prior conviction was an aggravated felony
for purposes of determining whether he was removable. It is undisputed that

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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this document did not meet the authentication requirements of 8 U.S.C.
§ 1229a(c)(3)(B) and 8 C.F.R. § 1003.41(a).

However, Morka has not

demonstrated that these requirements are mandatory or exclusive. He has
also not demonstrated that this document, which was printed from a website
maintained by the federal Judiciary and accompanied by testimony from the
officer who obtained it, rendered the hearing fundamentally unfair. See BustosTorres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990).

Because Morka is removable for having committed an aggravated felony,
we lack jurisdiction to review the final order of removal and retain jurisdiction
only to review constitutional claims or questions of law.

See 8 U.S.C.

§§ 1227(a)(2)(A)(iii), 1252(a)(2)(C), (D). Morka contends that the IJ improperly
denied his motion to change venue because he had erroneously labeled the
motion as unopposed. However, we lack jurisdiction to consider whether the
IJ abused its discretion by denying the motion to change venue.

See

§ 1252(a)(2)(C); Ogunfuye v. Holder, 610 F.3d 303, 306 n.4 (5th Cir. 2010). He
contends further that the IJ deprived him of his rights to counsel and due
process by denying his motion because he had counsel willing to represent him
in another venue and was forced to proceed pro se. Morka had no Sixth
Amendment right to counsel. See Ogbemudia v. INS, 988 F.2d 595, 598 (5th
Cir. 1993).

The IJ granted Morka two continuances to obtain counsel.

Accordingly, the proceedings were not fundamentally unfair in violation of due
process under the Fifth Amendment. See id. at 598-99.
Morka frames his challenge to the denial of CAT relief as whether the
BIA and IJ applied the correct legal standards to evaluate his eligibility for
CAT relief. His arguments, however, challenge the BIA and IJ’s factual and
credibility determinations regarding whether he would be tortured if he was
removed to Nigeria. An alien cannot cloak his arguments in constitutional
garb to avoid the jurisdiction-stripping provision of § 1252(a)(2)(C). Hadwani
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v. Gonzales, 445 F.3d 798, 801 (5th Cir. 2006). Morka’s challenges to the BIA
and IJ’s weighing and consideration of the evidence do not raise constitutional
or legal issues regarding the denial of CAT relief.

Accordingly, we lack

jurisdiction to consider Morka’s challenge to the denial of CAT relief. See
§ 1252(a)(2)(C).
Last, Morka contends that his rights to due process and equal protection
were violated because he was not advised of his right to contact the Nigerian
Consulate as guaranteed by the Vienna Convention on Consular Relations.
Assuming, arguendo, that Morka’s right under the Vienna Convention is
protected by due process, Morka “has not shown that he suffered prejudice due
to the IJ’s failure to inform him of his right to contact the [Nigerian
C]onsulate.” Rosales v. Bureau of Immigration and Customs Enforcement, 426
F.3d 733, 737 (5th Cir. 2005). Morka did not present his equal protection claim
to the BIA. His failure to exhaust this claim before the BIA is a jurisdictional
bar to our review of the issue. See § 1252(d)(1); Omari v. Holder, 562 F.3d 314,
319 (5th Cir. 2009).
Morka’s petition for review is DISMISSED in part for lack of jurisdiction
and DENIED in part. Morka’s incorporated motion for appointment of counsel
is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

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