Wilkinson-Okotie v. Gonzales

* 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opinion should not be published and is not precedent except under the limited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
F I L E D
June 13, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60437
Summary Calendar
ORITSERENEYE HENRY WILKINSON-OKOTIE,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of
the Board of Immigration Appeals
No. A28 590 395
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Oritsereneye Wilkinson-Okotie petitions for review of deci-
sions of the Board of Immigration Appeals (“BIA”). Wilkinson-
Okotie’s motion for bond pending review is denied.
Wilkinson-Okotie asserts that the BIA’s November 3, 2002,
order that affirmed the order of removal by the immigration judge

-- 1 of 3 --

2
(“IJ”) that granted voluntary departure was premature and unlawful.
Wilkinson-Okotie contends that his application for adjustment of
status tolled the deadline for his voluntary departure. He chal-
lenges the May 18, 2004, decision by the BIA that denied his first
motion to reopen and the BIA’s denial of his second motion to
reopen, and he asserts that counsel’s ineffective assistance de-
prived him of his due process right to fair proceedings.
We must determine, as an initial matter, whether we have jur-
isdiction. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 294 (5th
Cir. 2002). Wilkinson-Okotie did not timely petition for review of
the November 2002 decision that affirmed the IJ’s order of removal
and the grant of voluntary departure, nor did he timely petition
for review of the May 2004 decision that denied his first motion to
reopen. Accordingly, we lack jurisdiction to review those deci-
sions. See Karimian- Kaklaki v. INS, 997 F.2d 108, 111, 113 (5th
Cir. 1993).
Wilkinson-Okotie timely petitioned for review of the BIA’s
order that denied his second motion to reopen. The BIA found that
the motion to reopen was untimely and was prohibited by the nu-
merical limitation on such motions. The BIA also determined that
Wilkinson-Okotie was not eligible for adjustment of status.
The jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B) precludes
judicial review of the BIA’s discretionary decisions. Hadwani v.
Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Title 8
U.S.C. § 1255 provides that the status of an alien “may be adjusted

-- 2 of 3 --

3
by the Attorney General, in his discretion.” Id. (internal quota-
tions omitted). We lack jurisdiction over petitions for review
concerning the discretionary denial of relief under § 1255.
Hadwani, 445 F.3d at 800.
We may consider Wilkinson-Okotie’s ineffective assistance and
due process claims provided that the claims constitute “substantial
constitutional claim[s].” Assad v. Ashcroft, 378 F.3d 471, 475
(5th Cir. 2004) (per curiam). It has not been determined whether
an alien has a constitutional right to effective assistance in re-
moval proceedings. Id. Nevertheless, an attorney’s ineffective
assistance may implicate due process if counsel’s representation
“was so deficient as to impinge upon the fundamental fairness of
the hearing.” Id. (citation and internal quotations omitted).
Wilkinson-Okotie’s ineffective assistance and due process
claims concern the denial of adjustment of status. The decision on
adjustment of status is within the Attorney General’s discretion.
Hadwani, 445 F.3d at 800. Because Wilkinson-Okotie’s attorney’s
alleged deficiencies merely restricted the chance of obtaining ad-
justment of status, Wilkinson-Okotie has not alleged a violation of
due process. See Assad, 378 F.3d at 476. His petition for review
does not present a “substantial constitutional claim.” According-
ly, the petition for review is dismissed for want of jurisdiction.
PETITION DISMISSED; MOTION DENIED.

-- 3 of 3 --