IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60185

Summary Calendar

MARK CHIMWEMWE CHILEMBWE, also known as Mark Chilembwe, also 

known as Mark Chiugala,

Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A205-870-658

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Mark Chimwemwe Chilembwe petitions this court for review of an order 

by the Board of Immigration Appeals (BIA) determining that he was ineligible 

for adjustment of status. Chilembwe argues that he was entitled to an 

adjustment of status under 8 U.S.C. § 1255(a), or was entitled to a waiver of 

inadmissibility under 8 U.S.C. § 1182(h), despite his prior convictions. 

 

* 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

January 21, 2016

Lyle W. Cayce

Clerk

 Case: 15-60185 Document: 00513351552 Page: 1 Date Filed: 01/21/2016
No. 15-60185

2

Chilembwe also contends that he was deprived of his due process rights when 

he did not have an opportunity to be heard on the inadmissibility charges, and 

when the immigration judge (IJ) engaged in ex parte communication with 

Chilembwe and failed to recuse himself from the proceedings. We review 

factual findings for substantial evidence and questions of law de novo. LopezGomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

As to Chilembwe’s first argument, he conceded that he was removable 

based on overstaying his visa under 8 U.S.C. § 1227(a)(1)(B), then sought an 

adjustment of status under § 1255(a), which required him to demonstrate that 

he was admissible to the United States. The Department of Homeland 

Security (DHS) presented evidence that Chilembwe was convicted of a number 

of criminal offenses, including possession of less than two ounces of marijuana, 

which was a controlled substance conviction that rendered Chilembwe

inadmissible under § 1182(a)(2)(A)(i)(II). Chilembwe does not argue that this 

conviction did not render him inadmissible; instead, he contends that DHS was 

required, and failed, to prove that the § 1182(h) waiver did not apply. This is 

incorrect. See Opie v. I.N.S., 66 F.3d 737, 739 (5th Cir. 1995). Further, as the 

BIA stated, Chilembwe neither requested a waiver of inadmissibility under 

§ 1182(h) nor argued that his marijuana conviction for less than two ounces 

(approximately 56 grams) involved possession of less than thirty grams. By 

failing to address the BIA’s conclusions that his marijuana conviction rendered 

him inadmissible and that he failed to request a § 1182(h) waiver, Chilembwe 

has abandoned any challenge to these issues by failing to brief them. See Thuri 

v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).

As to Chilembwe’s due process arguments, he must establish that a due 

process violation occurred and that the violation resulted in substantial 

prejudice. See Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th Cir. 2000). 

 Case: 15-60185 Document: 00513351552 Page: 2 Date Filed: 01/21/2016
No. 15-60185

3

“[D]iscretionary relief from removal, including an application for adjustment 

of status, is not a liberty or property right that requires due process protection.” 

Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). And even assuming that 

the IJ’s alleged ex parte communication violated due process, Chilembwe fails 

to make any allegation that the violation substantially prejudiced his case. See 

Toscano-Gil, 210 F.3d at 473. Thus, Chilembwe has not demonstrated that his 

due process rights were violated. The petition for review is DENIED. Any 

outstanding motion is DENIED.

 Case: 15-60185 Document: 00513351552 Page: 3 Date Filed: 01/21/2016