* 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that this opinion should not be published and is not precedent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

_________________

No. 96-60836

(Summary Calendar)

_________________

ROLAND FELIX EYOUM,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

(A74-155-926)

September 16, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Roland Felix Eyoum (“Eyoum”), proceeding pro se, petitions for

review of an order of the Board of Immigration Appeals (“BIA”)

finding him deportable for remaining in the United States beyond

the time permitted by his visa and denying him permission to
1 The INS alleged that Eyoum had originally had a one-year

authorization. Eyoum, however, claimed at his deportation hearing

that he had been admitted for only six months.

-2-

voluntarily depart the United States. We dismiss Eyoum’s claim

regarding voluntary departure for lack of subject matter

jurisdiction and affirm the BIA on all other claims.

I

Eyoum, a native and citizen of Cameroon, entered the United

States legally in July 1993 as a nonimmigrant for a period of six

months or one year, a period that was subject to extension.1

Eyoum’s admission was classified as B-2 or “for pleasure,” which

meant that he could not pursue employment in the United States.

Eyoum nonetheless operated an import/export business in the United

States, as well as overstayed his visa.

In 1995, Eyoum pleaded guilty to illegally importing pancake

tortoises in violation of 18 U.S.C. § 545. The court sentenced him

to twelve months and one day in custody, three years’ probation,

and a $50 special assessment. Eyoum claimed that he was required

to serve only ten months and two weeks of the sentence. The

sentence was on appeal to the United States Court of Appeals for

the Seventh Circuit during Eyoum’s initial immigration proceedings

before the immigration judge (“IJ”). The Seventh Circuit has since

affirmed Eyoum’s sentence. United States v. Eyoum, 84 F.3d 1004

(7th Cir.), cert. denied, __ U.S. __, 117 S. Ct. 326, 136 L. Ed. 2d

240 (1996).
-3-

The Immigration and Naturalization Service (“INS”) brought

deportation proceedings against Eyoum, alleging that he was

deportable under both 8 U.S.C. § 1251(a)(1)(B) (overstaying a visa)

and under 8 U.S.C. § 1251(a)(2)(A)(i) (conviction of a crime of

moral turpitude). The IJ ruled orally at Eyoum’s deportation

hearing that the evidence did not support the charge of

deportability under § 1251(a)(2)(A)(i) because Eyoum’s sentence was

on appeal, and thus it was unclear whether Eyoum’s sentence would

ultimately be greater than one year, the temporal requirement for

deportation based on conviction of a crime of moral turpitude. The

IJ also concluded, however, that Eyoum was deportable because he

had overstayed his visa. In so finding, the IJ rejected Eyoum’s

argument that § 245(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1255, permitted him to adjust his status to

prevent a finding that he was deportable. The IJ also determined

that Eyoum was not entitled to any form of relief from deportation.

On appeal, the BIA concluded that the crime of which Eyoum was

convicted did not involve moral turpitude because Eyoum’s

importation of pancake turtles was illegal only because he had

failed to complete the proper paperwork. The BIA thus held that

Eyoum’s crime did not render him deportable or inadmissible.

However, the BIA determined that Eyoum was deportable for

overstaying his visa. The BIA also found that Eyoum was not

eligible for voluntary departure because his ten-month

incarceration demonstrated that he lacked the necessary good moral
-4-

character to qualify for voluntary departure. Eyoum petitions for

review of the BIA’s decision.

II

We will affirm an order of deportation issued by the BIA if

supported by reasonable, substantial and probative evidence on the

record considered as a whole. Carbajal-Gonzalez v. INS, 78 F.3d

194, 197 (5th Cir. 1996). We review findings of fact for

substantial evidence. Id. We will affirm the Board’s findings of

fact unless the alien can show that the evidence in his favor was

so compelling that no reasonable factfinder could conclude against

it. Id. We review conclusions of law de novo, but defer to the

BIA’s interpretation of ambiguous statutory provisions. Id.

Eyoum challenges the BIA’s determination that he is not

entitled to voluntary departure. Under the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009, we lack jurisdiction to review claims

for discretionary relief, including claims regarding voluntary

departure. 8 U.S.C. § 1252(a)(2)(B) (referring to 8 U.S.C. §

1229c); IIRIRA § 309(c)(4)(E). Because the BIA entered its final

order in Eyoum’s case on November 27, 1996, we lack jurisdiction to

review his claim that the BIA erred in denying his request for

voluntary departure. See Choeum v. INS, Nos. 96-1446, 97-1552,

1997 WL 356365, at *12 (1st Cir. July 2, 1997) (explaining that

IIRIRA’s transitional rules make jurisdiction-stripping provision
2 Moreover, Eyoum cannot demonstrate that he possesses the

good moral character required for voluntary departure. See 8

U.S.C. § 1101(f)(7) (“For the purposes of this chapter))No person

shall be regarded as, or found to be, a person of good moral

character who, during the period for which good moral character is

required to be established, is, or was))one who during such period

has been confined, as a result of conviction, to a penal

institution for an aggregate period of one hundred and eighty days

or more, regardless of whether the offense, or offenses, for which

he has been confined were committed within or without such period

. . . .”).

-5-

applicable to all aliens in proceedings on April 1, 1997 for whom

a final order of exclusion or deportation was entered more than

thirty days after September 30, 1996).2

Eyoum argues that he qualifies for an adjustment of status

pursuant to § 245(i) of the INA, 8 U.S.C. § 1255, because he is

entitled to a visa as an alien entrepreneur. Eyoum’s argument

fails for two reasons. First, even if he qualified as an alien

entrepreneur, he would not be entitled to adjustment of status

pursuant to § 245(i) because he never applied for an adjustment.

Second, Eyoum incorrectly assumes that he qualifies as an alien

entrepreneur. To qualify, an alien must demonstrate that he has

established a commercial enterprise in which he has invested

$500,000 to $1,000,000, and that the enterprise will create fulltime employment for not fewer than ten American citizens or lawful

permanent residents. 8 U.S.C. §§ 1153(b)(5)(A), 1153(b)(5)(C)(i)

and (ii). Eyoum’s business does not satisfy these requirements

because, as Eyoum admitted, he has invested only $100,000 in the

enterprise and the record contains no evidence that the enterprise
-6-

has created any jobs.

Eyoum also argues that his eligibility for admission as a

“treaty investor” requires that his nonimmigrant status be adjusted

pursuant to 8 C.F.R. § 248.1. However, as the BIA explained, Eyoum

never applied for status as a treaty investor. In any event,

because Eyoum’s previous immigrant status expired, he does not

qualify for a change in status. See 8 C.F.R. § 248.1(b) (“A change

in status may not be approved for an alien who failed to maintain

the previously accorded status or whose status expired before the

application or petition was filed . . . .”). 

The regulation contains an exception for aliens who

demonstrate, among other things, that the failure to file a timely

petition was due to “extraordinary circumstances beyond the control

of the applicant or petitioner,” 8 C.F.R. § 248.1(b)(1), and that

the alien “has not otherwise violated his or her nonimmigrant

status.” 8 C.F.R. § 248.1(b)(2). Even if Eyoum could demonstrate

extraordinary circumstances that prohibited his filing of a timely

petition, he violated his nonimmigrant status by engaging in

commerce while in the United States on a pleasure visa. Cf. Patel

v. INS, 811 F.2d 377, 383 (7th Cir. 1987) (explaining that BIA “is

entitled to take dim view of nonimmigrant aliens who work without

permission in violation of their nonimmigrant status”).

Relying on In re Garcia, 16 I. & N. Dec. 653 (Dec. 27, 1978),

Eyoum last contends that the BIA erred in failing to postpone his
-7-

deportation hearing pending a decision by the BIA regarding his

claim for adjustment of status. Because Eyoum never submitted an

application for an adjustment in status and because, had he done

so, he was ineligible for an adjustment in status to that of alien

entrepreneur, Eyoum’s argument that the deportation hearing should

have been stayed lacks merit. See Garcia, 16 I. & N. Dec. at 657

(“It clearly would not be an abuse of discretion for the

immigration judge to summarily deny a request for a continuance or

a motion to reopen upon his determination that the visa petition is

frivolous or that the adjustment application would be denied on

statutory grounds or in the exercise of discretion notwithstanding

the approval of the petition.”).

We DISMISS Eyoum’s claim for voluntary departure, AFFIRM the

decision of the Board of Immigration Appeals and we DENY Eyoum’s

motion for bond.