* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 10, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 04-60544

Summary Calendar

SALEEM KASSAMALI RAHEEMANI,

Petitioner

VERSUS

JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order of

the Board of Immigration Appeals

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM: *

Saleem Kassa mali Raheemani petitions this court to review a

Board of Immigration Appeals’ order denying his motion to reopen to

apply for adjustment of status. Because we find the BIA did not

abuse its discretion, we AFFIRM.2 I.

Petitioner is a native and cit izen of Pakistan, who was

admitted to the United States in 1995 as a visitor and permitted to

remain until February 1996. In 2003, the Immigration and

Naturalization Service (“INS”) issued a Notice to Appear, charging

him with removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), as an alien who remained in the United States longer

than permitted. Raheemani admitted each of the allegations in the

Notice to Appear and conceded removability at his immigration

hearing. He requested voluntary departure, which was granted until

November 13, 2003. No appeal was taken from that order.

On August 18, 2003, Raheemani filed a motion to reopen for

adjustment of status with the immigration judge. He asserted that

his alien labor certification application was approved and that he

was the beneficiary of an I-140 visa petition which was pending

approval, and therefore his removal proceedings should be reopened

to allow him to apply for adjus tment of status. The immigration

judge denied his motion to reopen, finding that the “approval of

the I-140 visa petition [was] highly problemat ic and the mere

filing of such a petition does not justify the reopening of a

case.” On appeal, the Board affirmed the immigration judge’s order

without opinion. This appeal followed.

II.

A.

T he government argues that our decision in United States v.2 8 U.S.C. § 1252(a)(2)(B)(i) provides:

Notwithstanding any other provisi on of law, no court shall

have jurisdiction to review --

(i) any judgment regarding the granting of relief under

section...1255 of this title, or (ii) any other decision or

action of the Attorney General the authority for which is

specified under this subchapter to be in the discretion of the

Attorney Gene ral, other than the granting of relief under

section 1158(a) of this title.

3 Assaad , 378 F.3d 471 (5th Cir. 2004) controls and that this court

l acks jurisdiction under section 242(a)(2)(B)(I) of the INA, 8

U.S.C. § 1252(a)(2)(B)(I), because the order related to a

discretionary adjustment of status. We disagree and conclude that

we have jurisdiction.

U nder 8 U.S.C. § 1252(a)(2)(B)(i), this court l acks

jurisdiction to review any order re lating to the discretionary

adjustment of status pursuant to 8 U.S.C. § 1255. 2 In M an zanoGarcia v. Gonzalez

, 413 F.3d 462 (5th Cir.2005), we addressed this

court’s jurisdiction to review a ruling on a motion to reopen under

INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). We stated that

we la cked jurisdiction over Manzano’s motion to reopen as it

related to his request for adjustment of status, “if th e BIA had

actually made a discretionary determination on the merits to deny

such adjustment of status under INA § 245, 8 U.S.C. § 1255.” Id.

at 468. S ee also Medina-Mo rales v. Ashcroft

, 371 F.3d 520, 526

(9th Cir.2004) (“If the denial of [the petitioner’s] motion to

reopen was a judgment regarding the granting of relief under

. . .4

§ 1255

. . . then we are without jurisdiction to review the

discretionary aspects of the BIA’s decision.”).

In the instant case, the immigration judge denied Raheemani’s

motion to reopen after finding that “the approval of the I-140 visa

petition is highly problematic and the mere filing of such a

petition does not justify the reopening of a case.” This statement

does not amount to a decision on the merits of Raheemani’s

adjustment of status claim. Because the immigration judge’s order

was “not an adverse determination of the merits of [petitioner’s]

requested adjustment of status under § 1255,” this court is not

stripped of jurisdiction over the motion to reopen. ManzanoGarcia , 413 F.3d at 469.

B.

We review the denial of a motion to reopen proceedings under

a highly deferential abuse of discretion standard. See Zhao v.

Gonzalez

, 404 F.3d 295 (5th Cir.2005). S ee also Lara v. Trominski

,

216 F.3 d 487, 496 (5th Cir.2000)(“[M]otions for reopening of

immigration proceedings are disfavored...”)(quoting INS v. Doherty

,

502 U.S. 314, 323, 112 S.Ct. 719). The United States Supreme Court

has found that even if the petitioner makes out a prima facie case

of eligibility for suspension of removal, the BIA can deny the

motion to reopen if it finds “the movant has not introduced

previously unavailable, material evidence.” I NS v. Abudu

, 485 U.S.

94, 104-05, 108 S.Ct. 904 (1988); s ee also

, 8 C.F.R. § 1003.2(a)3 Particul arly, petitioner argues that the immigration judge

committed legal error because he stated that Raheemani could await

the approval of his visa in Pakistan.

5 (“The Board has discretion to deny a motion to reopen even if the

party moving has made out a prima facie case for relief.”). We

will not disturb the BIA’ s discretion “so long as it is not

capricious, racially invidious, utterly without foundation in the

evidence, or otherwise so aberrational that it is arbitrary rather

than the result of any perceptible rational approach.” Pritchett

v. INS

, 993 F.2d 80, 83 (5th Cir.1993)(citing Osuchukwu v. INS

, 477

F.2d 1136, 1141-42 (5th Cir.1984)).

Raheemani argues that the BIA’s decision was legally erroneous

for two reasons. First, he contends the government failed to file

a timely opposition, and thus the motion should have been deemed

unopposed. S ee 8 C.F.R. §1003.23(b)(1)(iv). Second, he argues

that the immigration judge based his denial on “plainly erroneous

grounds–not any coherent discretionary one.” 3 As petitioner points

out, there are “at least” three reasons a motion to reopen may be

denied: (1) failure of applica nt to make a prima facie case for

u nderlying substantive relief sought; (2) failure to produce

previously unavailable material evidence; and (3) if the ultimate

relief sought is a discretionary decision (such as adjust ment of

status), the BIA may “leap ahead...over the two threshold concerns

( prima facie case and new evidence/reasonable explanation), and

simply determine, that even if they were met, the movant would not6

be entitled to the discretionary grant of relief.” A budu

, 485 U.S.

at 105.

The immigration judge denied petitioner ’s motion to reopen

because he found the “approval of the I-140 visa petition [was]

highly problematic and the mere filing of such petition does not

justify the reopening of a case.” We do not find the BIA’s reasons

for denying the motion to be capricious, racially invidious, or

otherwise so aberrational that it is arbitrary rather than the

result of any perceptible rational approach.” Also, the failure of

the government to file an opposition to the motion to reopen does

not require that the district judge grant the motion. The grant of

the motion remains discretionary even though it is unopposed. The

immigration judge was not obliged to grant a motion to reopen based

on a “problematic” pending I-140 petition. Under the very

deferential standard used to review denials of motions to reopen,

we cannot say that the Board erred in finding that the immigration

judged did not abuse his wide d iscretion. We therefore deny the

petition to review.

AFFIRMED.