Elbaz v. Ashcroft

* 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this opinion should not be published and is not precedent except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
July 18, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60616
Summary Calendar
JAKCOB ELBAZ,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
BIA No. A70-526-532
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Israeli citizen Jakcob Elbaz petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) summarily
affirming the removal order of the Immigration Judge (“IJ”).
Because the BIA summarily affirmed without opinion, the IJ’s
decision is the final agency determination for our review. See
Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003).
Elbaz raises numerous contentions that were not exhausted in

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his administrative proceeding. All of Elbaz’s contentions involve
alleged procedural violations that could have been corrected had
they been brought to the BIA’s attention. Elbaz was required to
exhaust those contentions before seeking our review. See Anwar v.
INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997). We do not address
Elbaz’s unexhausted contentions.
Elbaz contends that the notice to appear (“NTA”) in his case
violated the Due Process Clause because it did not indicate in what
year it was issued. One of the copies of the NTA in the record
indicates the year in which it was issued, while the other does
not. Even if it is assumed that the copy of the NTA sent to Elbaz
was stamped July 15 with no year indicated, Elbaz’s contention that
the NTA violated due process is unavailing. Elbaz has failed to
show that he was prejudiced by any omission. See Calderon-
Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
Elbaz contends that he had a valid entry document because he
was given documents allowing for advance parole. The charges
against Elbaz alleged that he lacked any valid entry document.
Because he was on parole, Elbaz was legally considered to have been
detained at the border and not to have entered the country, though
he was physically present in the United States. See Gisbert v.
U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.), amended in
part, 997 F.2d 1122 (5th Cir. 1993). Pursuant to the relevant
immigration regulations, the service of the documents charging the

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grounds for Elbaz’s removal terminated Elbaz’s parole
automatically. 8 C.F.R. § 212.5(e)(2)(i). The advance parole
documents, which legally did not serve to effect entry to begin
with, ceased to be valid for any purpose once the charging
documents were served.
Elbaz argues, for the first time in his reply brief, that his
right to equal protection of the law was violated because he was
treated as an arriving alien. Because the argument is raised for
the first time in Elbaz’s reply brief, this court need not consider
it. See Unida v. Levi Strauss & Co., 986 F.3d 970, 976 n.4 (5th
Cir. 1993).
PETITION DENIED.

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