UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1203

OYEBANJI MORONFOLU ADEOYE,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A93-003-052)

Argued: November 29, 2005 Decided: January 4, 2006

Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,

Senior Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

ARGUED: Joseph M. Kum, AMITY, KUM & SULEMAN, P.A., Greenbelt,

Maryland, for Petitioner. Song E. Park, U. S. DEPARTMENT OF

JUSTICE, Office of Immigration Litigation, Civil Division,

Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,

Assistant Attorney General, Civil Division, M. Jocelyn Lopez

Wright, Assistant Director, Office of Immigration Litigation, U. S.

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Oyebanji Moronfolu Adeoye seeks review of an order of the

Board of Immigration Appeals (the Board) denying his motion to

reconsider the earlier denial of a motion to reopen Adeoye’s

removal proceedings. Because we lack jurisdiction to consider

Adeoye’s claims, we dismiss the petition for review.

I.

Adeoye, a native and citizen of Nigeria, was admitted to the

United States in 1983 as a nonimmigrant student. In 1993, Adeoye

was convicted of theft in Maryland and sentenced to an 18-month

suspended prison term. In 2002, an immigration judge determined

that Adeoye was removable because, inter alia, he had been

convicted of an aggravated felony after being admitted to the

United States, see 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999); the

immigration judge ordered Adeoye removed to Nigeria. Adeoye

appealed the immigration judge’s decision to the Board; while that

appeal was pending, Adeoye moved to remand in order to apply for

adjustment of status based on his marriage to a United States

citizen. The Board dismissed Adeoye’s appeal; further, the Board

denied Adeoye’s motion to remand, in part because he had failed to

submit with the motion an application for adjustment of status or

an application for waiver of inadmissibility. See 8 C.F.R.

§ 1003.2(c)(1) (2005) (“A motion to reopen proceedings for the
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purpose of submitting an application for relief must be accompanied

by the appropriate application for relief and all supporting

documentation.”).

Adeoye subsequently moved the Board to reopen his removal

proceedings, again seeking a remand to allow him to apply for

adjustment of status. Because Adeoye listed the wrong agency

number on that motion, however, the motion was misfiled. Upon

discovering this error, Adeoye refiled his motion to reopen, but

the Board denied the motion as untimely. Adeoye moved the Board to

reconsider that decision, explaining the original filing error.

The Board granted Adeoye’s motion to reconsider its untimeliness

ruling, but nonetheless denied the motion to reopen because Adeoye

had failed to submit an application for waiver of inadmissibility--

a document necessary to establish Adeoye’s prima facie eligibility

for the relief he sought. See id.

Adeoye then moved the Board to reconsider the denial of his

motion to reopen, submitting along with the motion to reconsider an

application for waiver of inadmissibility. The Board denied the

motion, ruling that (1) it was procedurally barred and

(2) reconsideration was not warranted because Adeoye had not shown

that the Board had erred in denying his motion to reopen for

failure to file an application for waiver of inadmissibility, and

Adeoye’s later filing of such an application did not “cure [the]

defect in his earlier motion,” J.A. 4.
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II.

Adeoye claims that the Board abused its discretion by denying

his motion to reconsider the earlier decision denying his motion to

reopen for failure to file an application for waiver of

inadmissibility. See Yanez-Popp v. INS, 998 F.2d 231, 234 (4th

Cir. 1993) (stating standard of review). The Government argues,

however, that we lack jurisdiction to consider this claim. We

agree.

The statute governing judicial review of removal orders

provides that “no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of

having committed a criminal offense covered in section ...

1227(a)(2)(A)(iii).” 8 U.S.C.A. § 1252(a)(2)(C) (West 1999).

However, a recently enacted provision creates a limited exception

to this jurisdictional bar: “Nothing in [§ 1252(a)(2)(C) or any

similar provision restricting judicial review] shall be construed

as precluding review of constitutional claims or questions of law”

raised in a petition for review. 8 U.S.C.A. § 1252(a)(2)(D)

(Westlaw 2005).

Here, Adeoye essentially argues that he demonstrated prima

facie eligibility for the relief he sought--adjustment of status

based on marriage--and therefore the refusal by the Board to

reconsider its decision denying reopening based on his failure to

submit an application for waiver of inadmissibility was overly
*Adeoye contends that 8 C.F.R. § 1003.2(c)(1) is vague and

produces arbitrary results. Although this claim arguably may fall

within the exception permitting review of constitutional and other

legal questions, Adeoye concedes that he did not raise this claim

before the Board. Thus, we cannot consider it. See Stewart v.

INS, 181 F.3d 587, 595-96 (4th Cir. 1999). And, even if we could

consider this claim, we would conclude that it lacks merit.

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strict. This claim, however, does not present constitutional or

other legal issues but instead challenges the exercise by the Board

of its discretionary authority. See 8 C.F.R. § 1003.2(a) (2005)

(“The decision to grant or deny a motion to reopen or reconsider is

within the discretion of the Board.”); see also Ghosh v. Att’y

Gen., 629 F.2d 987, 989 (4th Cir. 1980) (“It is not an abuse of

discretion to deny a motion to reopen deportation proceedings when

the motion is not supported by proper affidavits or other

evidentiary material.”). We thus lack jurisdiction over Adeoye’s

petition for review.*

III.

For the reasons set forth above, we dismiss Adeoye’s petition

for review for lack of jurisdiction.

PETITION DISMISSED