* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60437

Summary Calendar

ORITSERENEYE HENRY WILKINSON-OKOTIE,

Petitioner,

versus

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

Respondent.

--------------------

Petition for Review of an Order of

the Board of Immigration Appeals

No. A28 590 395

--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Oritsereneye Wilkinson-Okotie petitions for review of decisions of the Board of Immigration Appeals (“BIA”). WilkinsonOkotie’s motion for bond pending review is denied.

Wilkinson-Okotie asserts that the BIA’s November 3, 2002,

order that affirmed the order of removal by the immigration judge
2

(“IJ”) that granted voluntary departure was premature and unlawful.

Wilkinson-Okotie contends that his application for adjustment of

status tolled the deadline for his voluntary departure. He challenges the May 18, 2004, decision by the BIA that denied his first

motion to reopen and the BIA’s denial of his second motion to

reopen, and he asserts that counsel’s ineffective assistance deprived him of his due process right to fair proceedings. 

We must determine, as an initial matter, whether we have jurisdiction. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 294 (5th

Cir. 2002). Wilkinson-Okotie did not timely petition for review of

the November 2002 decision that affirmed the IJ’s order of removal

and the grant of voluntary departure, nor did he timely petition

for review of the May 2004 decision that denied his first motion to

reopen. Accordingly, we lack jurisdiction to review those decisions. See Karimian- Kaklaki v. INS, 997 F.2d 108, 111, 113 (5th

Cir. 1993).

Wilkinson-Okotie timely petitioned for review of the BIA’s

order that denied his second motion to reopen. The BIA found that

the motion to reopen was untimely and was prohibited by the numerical limitation on such motions. The BIA also determined that

Wilkinson-Okotie was not eligible for adjustment of status.

The jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B) precludes

judicial review of the BIA’s discretionary decisions. Hadwani v.

Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Title 8

U.S.C. § 1255 provides that the status of an alien “may be adjusted
3

by the Attorney General, in his discretion.” Id. (internal quotations omitted). We lack jurisdiction over petitions for review

concerning the discretionary denial of relief under § 1255.

Hadwani, 445 F.3d at 800.

We may consider Wilkinson-Okotie’s ineffective assistance and

due process claims provided that the claims constitute “substantial

constitutional claim[s].” Assad v. Ashcroft, 378 F.3d 471, 475

(5th Cir. 2004) (per curiam). It has not been determined whether

an alien has a constitutional right to effective assistance in removal proceedings. Id. Nevertheless, an attorney’s ineffective

assistance may implicate due process if counsel’s representation

“was so deficient as to impinge upon the fundamental fairness of

the hearing.” Id. (citation and internal quotations omitted).

Wilkinson-Okotie’s ineffective assistance and due process

claims concern the denial of adjustment of status. The decision on

adjustment of status is within the Attorney General’s discretion.

Hadwani, 445 F.3d at 800. Because Wilkinson-Okotie’s attorney’s

alleged deficiencies merely restricted the chance of obtaining adjustment of status, Wilkinson-Okotie has not alleged a violation of

due process. See Assad, 378 F.3d at 476. His petition for review

does not present a “substantial constitutional claim.” Accordingly, the petition for review is dismissed for want of jurisdiction.

PETITION DISMISSED; MOTION DENIED.