### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60349 Summary Calendar

STANLEY ODINAKACHUKWU NWOSUOCHA,
Petitioner

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A076 824 072

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Stanley O dinakachukwu Nwosuocha, a native a nd c itize n o f Nigeria, petitions for review of the decisions of the Board of Immigration Appeals (“BIA”) denying him relief f

rom an order of removal, denying remand in light o f an unadjudicated visa petition filed on his behalf by his current wife, and denying his post

- a p p e al motion to reopen. Nwosuocha does not challenge the determination that he is removable, but he does argue tha t h i s d ue process U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly26, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60349 Document: 00512322267 Page: 1 Date Filed: 07/26/2013No. 12-60349

rights w ere violated because he was unable t o adjust his status based upon his current marriage to a United States citizen. In rejecting Nwosuocha’s motion t o reopen and remand based on the visa petition of his current wife, to whom he was married during his removal proceedings, the BIA observed that the D epart m e n t of Homeland Security (“DHS”) opposed the m o t i on. The D HS pointed to r e cord evidence that Nwosuocha had previously c ontracted a fraudulent m a rriage with a United States citizen in order to obtain an adjustment of his immigration status. The BIA also observed that Nwosuocha had failed t o a ddress the record evidence on this point. Ultimately, the BIA concluded that Nwosuocha would be unable to demonstrate prima facie e ligibility for adjustment of status on remand. A remand motion “filed during the pendency of an appeal” is substantively “a motion to r eopen.” In re L-V-K , 22 I. & N. Dec. 976, 978-79 (BIA 1999). Motions to reopen “are disfavored, and th e moving party bears a heavy burden.” Altamirano-Lopez v. Gonzale s , 435 F.3d 547, 549 (5th C ir. 2006) (quotation marks omitted). We employ a “highly deferential abuse-of-discretion standard” when r e vi e w i n g the d enial of a motion to r eopen. Z hao v. Gonzales , 404 F.3d 295, 303 (5th Cir. 2 005); see Diaz -Resendez v. INS , 960 F.2d 493, 4 95 (5th Cir. 1992). To be eligible for ad j u s t m e n t of status, an alien must, among other requirements, have “an immigrant visa

. . . immediately available t o him at the time his application is filed.” 8 U.S.C. § 1 255(a). Nwosuocha does not argue that his current wife’s visa petition has been approved; indeed, he acknowledges that the DHS has issued n o tice of its intent to deny that petition. Nor does Nwosuocha show that a visa would be i m m e d i a t ely available if he applied for adjustment o f status on remand. Nwosuocha thus fails to show that the BIA’s rejection of his request for r emand pending the adjudication of his c urrent wife’s visa p e tition was l egal error. See Diaz-Resendez , 9 60 F.2d at 495. He also f ails

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to show the rejection was “so irrational that it i s arbitrary r ather than the result of any perceptible rational approach.” Zhao, 404 F.3d at 304. Additionally, given Nwosuocha’s concession that nothing his prior counsel d id was necessarily wrong, there is no merit t o the claim that prior co u n s e l caused Nwosuocha to be deprived of due process. See Patel v. INS , 803 F.2d 804, 805-06 (5th Cir. 1 986). Although Nwosuocha claims tha t h i s p re-BIA proceedings were fundamentally unfair because of procedural deprivations, he di d n ot brief such a claim to the BIA before his appeal was dismissed. We therefore lack jurisdiction to consider such a claim, unless it was later p roperly urged in a motion to reopen. Toledo-Hernandez v. Mukasey , 5 21 F.3d 332, 334- 36 (5th C ir. 2008). Nwosuocha’s post-appeal motion to reopen to urge a claim of fundamental u nfairness caused by procedural defects was properly rejected by the BIA b e c a u s e the motion addressed matters that o ccurred before the case went to the BIA, i.e., matters that could have been – but were not – r aised before the B IA earlier. 8 C.F.R. § 1003.2(c)(1); see also Manzano-Garcia v. Gonzales , 413 F.3d 462, 470 (5th Cir. 2005). Additionally, we are without juri sdiction to review the BIA’s decision n ot to reopen the proceedings sua sponte

. See RamosBonilla v. Mukasey , 543 F.3d 216, 220 (5th Cir. 2008); 8 C.F.R. § 1003.2(a). Nwosuocha moves to supplement the record with a copy, which may be incomplete, of DHS’s n o tice of intent to deny his current wife’s visa application. We may not consider documents that were not part of th e administrative record, and the motion is denied. 8 U.S.C. § 1252(b)(4)(A); see also Mei He v. Holder , 442 F. App’x 172, 175 (5th Cir. 2011). PETITIONS DENIED IN PART AND DISMISSED IN PART; MOTION TO SUPPLEMENT DENIED.

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