Momoh 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opinion should not be published and is not precedent except under the limited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
March 31, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60174
Summary Calendar
TIJANI MOMOH,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A91 388 692
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Tijani Momoh, a native and citizen of Nigeria, petitions
for review of the decision of the Board of Immigration Appeals
(BIA) dismissing his appeal from the immigration judge’s (IJ)
denial of relief under the Convention Against Torture (CAT) and
order of deportation. The IJ denied relief based on Momoh’s
withdrawal of his request for relief under the CAT, noting that the
matter had been remanded by the BIA “solely for the purpose of
considering relief under the Convention.” On appeal to the BIA,

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Momoh argued, inter alia, that he was entitled to relief under the
Immigration and Nationality Act (INA) §§ 212(c) and 245(i). The
BIA concurred with the IJ’s decision and dismissed the appeal,
noting that Momoh had not established that he was entitled to an
adjustment of status based on marriage to a U.S. citizen and was
not eligible for relief under INA § 212(c).
Because removal proceedings were commenced against Momoh
prior to April 1, 1997, and were concluded more than thirty days
after September 30, 1996, the transitional rules for judicial
review of the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 apply. See De Zavala v. Ashcroft, 385 F.3d 879,
883 (5th Cir. 2004). Momoh presents no authority to support his
contention that it was error not to consider issues outside the
scope of the BIA’s remand, which was made solely to consider
whether Momoh was entitled to relief under the CAT. See In re
Patel, 16 I&N Dec. 600, 601 (BIA 1978). To the extent that the BIA
addressed Momoh’s assertions that he was entitled to an adjustment
of status and was eligible for a waiver of deportation under INA
§ 212(c), Momoh has not shown that the BIA erred in determining
that he was ineligible for such relief.
In order to obtain an adjustment of status based on
marriage, an alien must be eligible to receive an immigrant visa
and be admissible for permanent residence, and the immigrant visa
must be immediately available to the alien. See 8 U.S.C.
§ 1255(i). Momoh has not shown that an immigrant visa is

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immediately available to him. Cf. In re Velarde-Pacheco, 23 I&N
Dec. 253, 256-57 (BIA 2002) (requiring an alien to produce “clear
and convincing evidence indicating a strong likelihood that the
respondent’s marriage is bona fide”).
Under INA § 212(c), a permanent resident alien may apply
to the Attorney General for a discretionary waiver of deportation.
See INS v. St. Cyr, 533 U.S. 289, 295 (2001). Momoh admitted that
he was a temporary resident but made no showing that he had
obtained status as a lawful permanent resident.
Accordingly, there is substantial evidence to support the
BIA’s decision, and Momoh’s petition for review is DENIED. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Momoh’s motion for the appointment of counsel is also
DENIED.

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