Ogutu v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 28, 1999
• Docket: 99-60063
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60063 Summary Calendar

JASPER OMONDI OGUTU,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

-------------------- Petition for Review of an Order of the Board of Immigration Appeals A29-077-977 -------------------- December 27, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Jasper Ogutu petitions for review of an order of deportation

and denial of voluntary departure issued by the immigration judge

(“IJ”) and affirmed by the Board of Immigration Appeals (“BIA”).

The order stems from the BIA’s order affirming the termination of

Ogutu’s permanent resident status for failure to comply with

8 U.S.C. § 1186a. Ogutu contends that the IJ denied him due

process and a fair hearing by denying his motion for continuance

and that the IJ denied him the opportunity to establish his

eligibility for an extreme hardship waiver.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-60063 -2-

The BIA’s decision that a joint petition did not exist is

supported by substantial record evidence. See Witter v. INS,

113 F.3d 549, 552 (5th Cir. 1997), petition for cert. filed,

68 U.S.L.W. 3252 (U.S. Sept. 30, 1999) (NO. 99-56). The IJ’s

decision to deny a continuance was not an abuse of discretion.

Ogutu has not shown prejudice, and he failed to provide evidence

in support of his stated reason for a continuance. See Witter,

113 F.3d at 555; Patel v. INS, 803 F.2d 804, 807 (5th Cir. 1986).

The order of deportation is supported by reasonable, substantial,

and probative evidence on the record considered as a whole. See

Witter, 113 F.3d at 552. Because Ogutu did not present to the

BIA his argument regarding the denial of eligibility for an

extreme hardship waiver, we lack jurisdiction to decide the

issue. See id. at 554.

The Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”) is applicable to all aliens in proceedings

on April 1, 1997, for whom a final order of deportation was

entered more than thirty days after September 30, 1996. Eyoum v.

INS, 125 F.3d 889, 891 (5th Cir. 1997). Under IIRIRA, we lack

subject matter jurisdiction to review claims for discretionary

relief, such as voluntary departure. See 8 U.S.C.

§ 1252(a)(2)(B); Eyoum, 125 F.3d at 891. Because the BIA’s final

order of deportation was issued on January 8, 1999, we lack

subject matter jurisdiction to review the appeal regarding

voluntary departure.

The petition for review is DENIED.