* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

March 31, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60174

Summary Calendar

TIJANI MOMOH,

Petitioner,

versus

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

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A91 388 692

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM: *

Tijani Momoh, a native and citizen of Nigeria, petitions

for review of the decision of the Board of Immigration Appeals

(BIA) dismissing his appeal from the immigration judge’s (IJ)

denial of relief under the Convention Against Torture (CAT) and

order of deportation. The IJ denied relief based on Momoh’s

withdrawal of his request for relief under the CAT, noting that the

matter had be en remanded by the BIA “solely for the purpose of

considering relief under the Convention.” On appeal to the BIA,2

Momoh argued, inter alia, that he was entitled to relief under the

Immigration and Nationality Act (INA) §§ 212(c) and 245(i). The

BIA concurred with the IJ’s decision and dismissed the appeal,

noting that Momoh had not established that he was entitled to an

adjustment of status based on marriage to a U.S. citizen and was

not eligible for relief under INA § 212(c).

Because removal proceedings were commenced against Momoh

prior to April 1, 1997, and were conc luded more than thirty days

after September 30, 1996, the transitional rules for judicial

review of the Illegal Immigration Reform and Immigrant Re sponsibility Act of 1996 apply. S ee De Zavala v. Ashcroft

, 385 F.3d 879,

883 (5th Cir. 2004). Momoh presents no authority to support his

contention that it was error not to consider issues outside the

scope of the BIA’s remand, which was made solely to consider

whether Momoh w as entitled to relief under the CAT. S ee In re

Patel

, 16 I&N Dec. 600, 601 (BIA 1978). To the extent that the BIA

addressed Momoh’s assertions that he was entitled to an adjustment

of status and was eligible for a waiver of deportation under INA

§ 212(c), Momoh has not sho wn that the BIA erred in determining

that he was ineligible for such relief.

In or der to obtain an adjustment of status based on

marriage, an alien must be eligible to receive an immigrant visa

and be admissible for permanent residence, and the immigrant visa

must be immediately available to the alien. S ee 8 U.S.C.

§ 1255(i). Momoh has not shown that an immigrant visa is3

immediately available to him. C f. In re Velarde-Pacheco

, 23 I&N

Dec. 253, 256-57 (BIA 2002) (requiring an alien to produce “clear

and convincing evidence indicati ng a strong likelihood that the

respondent’s marriage is bona fide”).

Under INA § 212(c), a permanent resident alien may apply

to the Attorney General for a discretionary waiver of deportation.

See INS v. St. Cyr

, 533 U.S. 289, 295 (2001). Momoh admitted that

he was a temporary resid ent but made no showing that he had

obtained status as a lawful permanent resident.

Accordingly, there is substantial evidence to support the

BIA’s decision, and Momoh’s petition for review is DENIED. S ee

Lopez-Gomez v. Ashcroft , 263 F.3d 442, 444 (5th Cir. 2001).

Mom oh’s motion for the appointment of counsel is also

DENIED.