Osibamowo v. Holder, No. 09-60445. Summary Calendar (5th. Cir. 4/8/2010)
| Decision Date | 08 April 2010 |
| Docket Number | No. 09-60445.,09-60445. |
| Parties | ABIODUN OYEWAL OSIBAMOWO, Petitioner, v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before: DAVIS, SMITH, and DENNIS, Circuit Judges.
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Abiodun Oyewal Osibamowo, a native and citizen of Nigeria, petitions this court for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the removal order of the immigration judge (IJ). The IJ denied Osibamowo's request for cancellation of removal after concluding that Osibamowo had not demonstrated that his removal would cause his wife or sons exceptional and extremely unusual hardship. Osibamowo argues that the Bureau of Citizenship and Immigration Services and the BIA improperly adjudicated and delayed adjudication of his wife's applications on his behalf for adjustment of status. He also argues that the IJ improperly denied his request for a continuance while the second of these applications was pending.
A court can review a final order of removal only when "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). "Failure to exhaust an issue creates a jurisdictional bar as to that issue." Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). "An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen." Id. Because Osibamowo did not raise the above issues before the BIA and does not argue due process violations "except for procedural errors that are correctable by the BIA," we lack jurisdiction to consider these issues. Id.
Next, Osibamowo argues that the IJ erred in finding that he had not demonstrated the requisite hardship under 8 U.S.C. § 1229b(b)(1)(D). However, we lack jurisdiction to review this issue because the IJ's hardship determination was a discretionary decision rather than a legal or nondiscretionary decision. See § 1252(a)(2)(B); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004).
Last, Osibamowo argues that the BIA erred by holding him to a new, nonretroactive standard in denying his ineffective assistance of counsel claim. Although Osibamowo listed ineffective assistance of counsel in his notice of appeal as an issue he intended to appeal to...
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