                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-6640



DONALD IGWEBUIKE,

                                            Petitioner - Appellant,

           versus


RICHARD C. CATERISANO, Maryland District
Director   of  the    U. S. Citizenship &
Immigration Services,

                                             Respondent - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
04-1586-DKC)


Argued:   October 27, 2006                 Decided:   April 20, 2007


Before WILLIAMS, MICHAEL, and KING, Circuit Judges.


Reversed and remanded with instructions by unpublished per curiam
opinion.


ARGUED: Steven Kreiss, Washington, D.C., for Appellant.     Bryan
Stuart Beier, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Jennifer A. Wright,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Donald Igwebuike, an alien, appeals the district court’s

order dismissing, for lack of subject matter jurisdiction, his

petition for a writ of habeas corpus.               Igwebuike filed the habeas

petition after the Bureau of Citizenship and Immigration Services

placed him in jail pursuant to a final order of exclusion and

rejected      his    I-485    application     for   adjustment   of    status    to

permanent legal resident.          The district court had jurisdiction to

consider whether the District Director committed legal error in

determining         that   Igwebuike    was      inadmissible    and   therefore

ineligible for adjustment of status.                 We have jurisdiction to

review the district court’s dismissal order.              Because we conclude

that legal error was committed, we remand for the district court to

enter an order instructing the District Director to reconsider

whether Igwebuike is eligible for an adjustment of status.



                                         I.

              Igwebuike, a citizen of Nigeria, entered the United

States on August 10, 1980, as a J-1 exchange student to attend

Clemson University.          After graduation he received temporary worker

status to play professional football for the Tampa Bay Buccaneers

and the Minnesota Vikings.         His NFL career ended prematurely after

his 1990 indictment in Tampa on charges relating to the importation

of   heroin    into    the    United   States.      Igwebuike    maintained     his


                                         2
innocence, went to trial, and was acquitted by a jury.                    He remained

in the United States and in 1995 married Gacquett Jennings, a U.S.

citizen.

            In 1996 Igwebuike left the United States for a brief

visit abroad.     Upon his return he was paroled into the country and

ordered to appear before the Immigration Court.                         Igwebuike was

charged with being an excludable alien on the grounds that (1) he

lacked an immigration visa or other valid entry document, see 8

U.S.C. § 1182(a)(7)(A)(i)(I), and (2) he entered the United States

for employment purposes without a labor certification, see id.

§ 1182(a)(5)(A)(i).

            In    September           1997,       before    exclusion     proceedings

commenced, Gacquett Jennings filed an I-130 petition to register

Igwebuike as an immediate relative of a U.S. citizen.                       Igwebuike

simultaneously         filed     an    I-485       application,     requesting      the

Immigration      and    Naturalization            Service   (INS)   to    adjust    his

immigration status (upon approval of the I-130) to legal permanent

resident.

            On February 8, 1999, Igwebuike moved to terminate the

exclusion     proceedings        due     to       the   pending   I-130    and     I-485

applications.      The immigration judge (IJ) informed him that the

Immigration Court did not have jurisdiction to adjudicate the I-130

petition while the exclusion proceedings were ongoing. At the next

hearing,    in    March        1999,    Igwebuike        denied   both    charges    of


                                              3
excludability. At a third hearing in June 1999, however, Igwebuike

admitted excludability on the invalid document charge.         The IJ

proceeded to find Igwebuike excludable on both charges and ordered

him excluded and removed from the United States.

           On July 15, 1999, an INS adjudication officer interviewed

Igwebuike and Jennings regarding his I-485 application and her I-

130 application.    The officer approved the I-130 application, but

deferred   action   on   the   I-485   application   pending   further

consideration.   The District Director, in a letter dated July 15,

1999, requested that Igwebuike “[s]ubmit the complete disposition

for the . . . arrest” on November 9, 1990.     J.A. 104.   The letter

specified that “[t]he disposition must be issued by the court which

had jurisdiction over the case.”         Id.   On August 10, 1999,

Igwebuike provided the adjudication officer with a copy of the

judgment of acquittal, issued by the presiding judge, showing that

Igwebuike was acquitted on all three charges in the indictment.

The INS took no action on Igewbuike’s application despite several

inquiries by Igwebuike’s lawyer and his wife (Jennings).

           On December 13, 2001, the INS took Igwebuike into custody

pursuant to the 1999 order of excludability.    He was released on a

$5,000 bond on December 21, 2001, after the INS was unable to

remove him from the United States.       The INS, which in 2003 was

moved into the Department of Homeland Security and renamed the

Bureau of Citizenship and Immigration Services (BCIS), detained


                                  4
Igwebuike again on May 3, 2004.    Igwebuike informed the BCIS that

his application for adjustment of status, filed seven years prior,

was still pending.    On May 12, 2004, the District Director denied

Igwebuike’s I-485 application for an adjustment of status.         The

order stated:

     Although you were acquitted of Importation of Heroin, you
     failed to submit the complete arrest/police reports
     detailing the circumstances surrounding your arrest.
     Therefore, you have failed to establish to the
     satisfaction of the Service that you were entirely
     innocent of [the drug trafficking charges]. Absent such
     documentation, you have failed to establish your
     admissibility to the United States pursuant to Section
     [1182(a)(2)(C)(i)], as a suspected trafficker in
     controlled substances.

J.A. 122.   The Director concluded, “As you are inadmissible to the

United States pursuant to [§ 1182(a)(2)(C)(i)], you are ineligible

for adjustment of status, both as a matter of law and as a matter

of discretion.”      J.A. 122.    No administrative appeal of this

determination was available.     See 8 C.F.R. § 245.2(a)(5)(ii).

            Igwebuike, who remained in custody, then filed a petition

for a writ of habeas corpus, see 28 U.S.C. § 2241, in district

court. He contended that the District Director erred in concluding

that he was an inadmissible alien under 8 U.S.C. § 1182(a)(2)(C)(i)

and therefore statutorily ineligible for an adjustment of status.

Igwebuike also contended that the Director failed to comply with

the procedural requirement in 8 C.F.R. § 103.2(b)(8) by denying his

application without first requesting additional evidence. Finally,

Igwebuike contended that the Director did not fairly adjudicate his

                                   5
adjustment of status application, in violation of his right to due

process. In March 2005 the district court granted the government’s

motion to dismiss the habeas petition, holding that 8 U.S.C.

§   1252(a)(2)(B)   prevented   judicial   review   of   the   Director’s

decision.    Igwebuike seeks to appeal the district court’s order.



                                  II.

            We must first determine how to classify Igwebuike’s case

in this court.   After his case came to us, the REAL ID Act of 2005,

Pub. L. No. 109-13, Div. B, 119 Stat. 231, went into effect.         The

Act eliminated habeas jurisdiction over final orders of removal,

making a petition for review filed in a federal court of appeals

the “sole and exclusive means for judicial review” for most orders

of removal.    8 U.S.C. § 1252(a)(5).      The Act instructed district

courts to transfer all pending habeas petitions that challenge a

final order of removal to the appellate court in which a petition

for review could have been filed in the first instance.         119 Stat.

at 311.   Although the REAL ID Act is silent with respect to habeas

appeals pending before appellate courts on the date the Act went

into effect, this court and others have construed such appeals as

petitions for review filed under § 1252.     See, e.g., Jahed v. Acri,

468 F.3d 230, 233 (4th Cir. 2006); Schmitt v. Maurer, 451 F.3d

1092, 1095 (10th Cir. 2006); Alvarez-Barajas v. Gonzales, 418 F.3d

1050, 1053 (9th Cir. 2005).


                                   6
           Igwebuike clarified at oral argument that he does not

challenge the order of removal. (Indeed, he conceded excludability

before   the   IJ.)     He   only   challenges   the   District   Director’s

determination that he is not eligible for consideration for an

adjustment of status. Accordingly, the REAL ID Act does not apply,

and we therefore consider this proceeding as an appeal from the

district court’s dismissal of his habeas petition.

           The government argues that our review of the district

court’s order dismissing Igwebuike’s habeas petition is barred by

the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA).        The government relies specifically on 8 U.S.C.

§ 1252(a)(2)(B), which states:        “no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under

section [1255],” relating to adjustment of status. This provision,

the government argues, prohibits our review of Igwebuike’s habeas

petition because the decision to grant an adjustment of status is

committed to the discretion of the Attorney General, acting through

his designated district director.          See 8 U.S.C. § 1255(a) (stating

that “the status of an alien . . . may be adjusted by the Attorney

General, in his discretion and under such regulations as he may

prescribe”).

           Section 1252(a)(2)(B) is not applicable to the present

case.    Section 1252, as amended by the IIRIRA, governs judicial

review over exclusion proceedings initiated after April 1, 1997,


                                       7
the date the IIRIRA went into effect.             See IIRIRA, Pub. L. No. 104-

208, § 309(a), 110 Stat. 3009; Okpa v. INS, 266 F.3d 313, 316-17

(4th Cir. 2001).        The proceedings against Igwebuike were commenced

before this date, in June 1996.               Thus, the IIRIRA’s transitional

rules, not the permanent rules, determine our jurisdiction.                    See

IIRIRA, § 309(c)(4), 110 Stat. 3009.

              Section    309   of   the    IIRIRA,     the    transitional    rule

governing judicial review, states that “there shall be no appeal of

any discretionary decision under [§ 1255].”                  Id. § 309(c)(4)(E).

This transitional rule limits jurisdiction over appeals only, not

petitions for habeas corpus.         See Bowrin v. INS, 194 F.3d 483, 488

(4th   Cir.    1999)    (stating    that      when   Congress   “used   the   term

‘appeal,’ [it] meant the process of ordinary appellate review

commenced with the filing of a notice of appeal or a petition for

review in the court of appeals”). Section 309(c)(4) does not refer

to habeas relief under § 2241, and we do not interpret it to

“preclude district court jurisdiction over such habeas petitions.”

Id.

              Although the transitional rules of the IIRIRA do not bar

habeas jurisdiction, our review is limited.                  Habeas jurisdiction

under § 2241 permits courts to review “pure questions of law [that

do] not touch upon decisions that are under the discretion of the

Attorney General.” Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir.

2004) (citing INS v. St. Cyr, 533 U.S. 289, 305 (2001)).                       The


                                          8
government states that we lack jurisdiction over Igwebuike’s habeas

petition because the decision to adjust an alien’s status is

committed to the discretion of the Attorney General.                  See 8 U.S.C.

§ 1255.    As the government points out, “[w]e lack jurisdiction to

review a denial of status adjustment.”                Velasquez-Gabriel v.

Crocetti, 263 F.3d 102, 104 n.1 (4th Cir. 2001).

            Igwebuike, however, does not challenge a discretionary

decision by the Director.            Indeed, the Director did not have the

opportunity to exercise discretion because he determined that

Igwebuike was an inadmissible alien under § 1182(a)(2)(C)(i) and

therefore statutorily ineligible for discretionary relief.                       See

§ 1255 (permitting the Attorney General to adjust the status of

aliens who are “admissible to the United States”).                Igwebuike only

seeks     review   of   what    he    contends   is   legal       error    in    the

determination that rendered him ineligible for an adjustment of

status.

            Whether Igwebuike is an inadmissible alien, and therefore

ineligible for an adjustment of status, is a question that involves

the application of legal standards.               There is a “distinction

between    eligibility    for   discretionary      relief     .   .    .   and   the

favorable exercise of discretion.”               St. Cyr, 533 U.S. at 307

(2001).     A court may review the legal standards applied in a

determination of eligibility, but it may not remand a decision to

grant or withhold discretionary relief.            See DaCosta v. Gonzales,


                                         9
449 F.3d 45, 49 (1st Cir. 2006) (holding that the court could

review the BIA’s determination that petitioner was ineligible for

discretionary relief); Morales-Morales v. Ashcroft, 384 F.3d 418,

422 (7th Cir. 2004) (concluding that the IIRIRA does not “clearly

indicate that the exclusion from judicial review is so extreme as

to purport to authorize the Attorney General to disregard . . .

statutory criteria”).        We conclude that we have jurisdiction to

review whether the Director committed legal error in determining

that Igwebuike is an inadmissible alien under 8 U.S.C. § 1182.             We

stress that our review is limited to reviewing whether Igwebuike is

legally   eligible    to    be   considered    for    discretionary   relief,

specifically, an adjustment of status.             We would not review the

Director’s exercise of his discretion whether to adjust Igwebuike’s

status.



                                     III.

           We now turn to the merits of Igwebuike’s petition.

First, we consider whether the Director committed legal error in

finding   Igwebuike        inadmissible     and,     therefore,   statutorily

ineligible for an adjustment of status.              Second, we consider his

claim that the Director failed to comply with the procedural

requirements in 8 C.F.R. § 103.2(b)(8).                Finally, we take up

Igwebuike’s due process challenge.




                                      10
                                    A.

            8 U.S.C. § 1255(a) authorizes the Attorney General to

adjust an alien’s status to legal permanent resident if “the alien

is eligible to receive an immigrant visa and is admissible to the

United States for permanent residence.”         An alien is thus not

eligible for an adjustment of status if he is inadmissible under

§   1182.     Section   1182(a)(2)(C)    provides   that   an   alien   is

inadmissible if “the Attorney General knows or has reason to

believe [the alien] is or has been an illicit trafficker in any

controlled substance.”    The Director concluded that Igwebuike was

inadmissible under this provision because Igwebuike “failed to

establish to the satisfaction of the Service that [he] was entirely

innocent” of the 1990 charges for importing heroin.             J.A. 122.

This   determination     rendered   Igwebuike    ineligible     for     the

discretionary relief provided in § 1255(a).

            The Director committed legal error in finding Igwebuike

inadmissible under § 1182(a)(2)(C).      The statute explicitly states

that an alien is inadmissible only when the Attorney General “knows

or has reason to believe” the alien is a drug trafficker.             This

belief must be based on “reasonable, substantial, and probative

evidence.”    Matter of Rico, 16 I. & N. Dec. 181, 185 (BIA 1977);

Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).            The

Director did not cite any evidence, other than a charge for which




                                    11
Igwebuike was acquitted, to support a finding that Igwebuike was a

drug trafficker.

               An arrest or charge by itself is not substantial evidence

of drug trafficking.         Although the Director may determine that an

alien is inadmissible based on facts underlying an arrest, he must

cite these facts as support for his “reason to believe” that the

petitioner was involved in drug trafficking.                   In Matter of Rico,

for example, the BIA did not rest on the evidence of Rico’s arrest

for drug trafficking, but detailed all of the evidence against him,

including the undisputed fact that he had a “large quantity of

marihuana concealed in his motor vehicle” at the time of his

arrest.       16 I. & N. Dec. at 186.             Similarly, in Rojas-Garcia v.

Ashcroft, 339 F.3d 814 (9th Cir. 2003), the Ninth Circuit upheld

the    BIA’s    decision   to   deny   an     I-485    application      because,    in

addition to a previous arrest for drug trafficking, two undercover

detectives testified that they had personally arranged drug deals

with    the    petitioner.      Id.    at   818;     see    also    Lopez-Molina    v.

Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient

reason to believe the alien had committed illegal acts underlying

previous drug trafficking arrest because the government submitted

documents describing the police surveillance of the alien and the

alien’s subsequent attempt to escape with 147 pounds of marijuana).

Because the Director did not point to reasonable, substantial, and

probative       evidence   to   support       a    belief    that    Igwebuike     had


                                         12
trafficked     in    drugs,    he    erred       in    concluding   that       he    was

inadmissible.

             The government argues that the Director did not need to

provide substantial evidence of drug trafficking because Igwebuike

bears the burden of establishing eligibility for relief.                       In order

to meet this burden, the government argues, Igwebuike must show

that there is no reason to believe that he was involved in drug

trafficking. According to the government, Igwebuike failed to meet

this burden because he did not provide evidence, such as arrest or

police   reports,     showing       that    he    was    innocent   of     the      drug

trafficking charges.      The government overstates the nature of what

Igwebuike had to show in this case.

             An alien seeking an adjustment of status has the burden

to   prove    that   he   is    eligible         for    relief.     See    8     C.F.R.

§ 103.2(b)(1); Rashtabadi v. INS, 23 F.3d 1562, 1567-68 (9th Cir.

1994); cf. 8 U.S.C. § 1361 (stating that an alien seeking admission

has the burden to prove that he “is not inadmissible under any

provision of this chapter”).            This does not mean, however, that

Igwebuike must affirmatively prove that he was innocent of drug

trafficking.    An alien is inadmissible under § 1182(a)(2)(C), and

therefore ineligible for relief, if the Attorney General “knows or

has reason to believe” that he is involved in drug trafficking.                       An

alien satisfies his burden to show that he is not inadmissible

under this provision once he submits any evidence requested by the


                                           13
Director, see 8 C.F.R. § 103.2(b)(8), and that evidence, together

with other evidence before the Director, is not sufficient to

establish knowledge or belief on the Director’s part that the alien

is a drug trafficker.            Igwebuike has met this burden because his

arrest for drug trafficking, and the disposition of his case (the

judgment of acquittal) that he submitted at the Director’s request,

did not provide reasonable, substantial, and probative evidence of

drug trafficking.         See Matter of Rico, 16 I. & N. Dec. at 185;

Alarcon-Serrano, 220 F.3d at 1119.                In short, the evidence was

insufficient as a matter of law to support the Director’s finding

that Igwebuike was inadmissible under § 1182(a)(2)(C).

               Of course, our conclusion that the Director committed

legal error in finding Igwebuike inadmissible does not suggest that

Igwebuike is entitled to an adjustment of status.               The grant of an

application for adjustment of status is a matter of “administrative

grace, not mere eligibility.”             Matter of Leung, 16 I. & N. Dec. 12,

14 (BIA 1976).           Thus, in addition to proving eligibility for

relief,   an     alien    must    also    show   that   “discretion    should   be

exercised in his favor.”          Matter of Patel, 17 I. & N. Dec. 597, 601

(BIA 1980).



                                           B.

               Igwebuike also claims that his failure to submit the

arrest    or    police    reports    to    the   BCIS   could   not   render    him


                                           14
ineligible for relief because the Director never requested this

information pursuant to 8 C.F.R. § 103.2(b)(8).               This regulation

states, “If there is evidence of ineligibility in the record, an

application or petition shall be denied on that basis alone.”               If,

on the other hand, “the evidence submitted either does not fully

establish    eligibility    for   the       requested   benefit   or     raises

underlying   questions     regarding    eligibility,    the    Service    shall

request the missing initial evidence.”           J.A. 122.

            The government concedes that, pursuant to the regulation,

the   Director   must   request   additional      information     unless   the

evidence in the record is sufficient to establish ineligibility.

We have already explained that an arrest for drug trafficking,

without any of the facts underlying the arrest, does not give the

Director reason to believe that the petitioner was involved in that

activity.    Thus, the Director could not find Igwebuike ineligible

based on the evidence in the record.          The drug trafficking arrest,

however, does “raise underlying questions regarding eligibility,”

see § 103.2(b)(8), and the Director was obliged to request further

information, such as arrest or police reports, if he believed it

was necessary to determine Igwebuike’s eligibility for relief.

Once the Director requests additional information, he may deny the

application if the alien fails to provide the information, see

§ 103.2(b)(13), or prove its non-existence, see § 103.2(b)(2).




                                       15
                                         C.

           Finally,       we   address    Igwebuike’s   due     process    claim.

Igwebuike submits that he agreed to admit excludability solely

because the IJ promised that the INS would fairly adjudicate his

adjustment of status petition.           Igwebuike argues that the Director

disregarded this agreement and arbitrarily denied his application,

in   violation of his due process rights.           We reject this claim for

two reasons.

           First, there is no evidence in the record that Igwebuike

reached such an agreement with the immigration judge.                      The IJ

merely informed Igwebuike that the INS could not process his

application    for   an    adjustment     of   status   while    the   exclusion

proceedings were ongoing. Igwebuike then conceded excludability so

that the INS could process his I-130 and I-485 petitions.                 There is

no record that the immigration judge and Igwebuike reached any

agreement regarding his I-485 application.

           Second, a due process claim requires the deprivation of

some cognizable interest or property.             Matthews v. Eldridge, 424

U.S. 319, 332 (1976).          Aliens do not have a property interest or

right to an adjustment of status.              As we explained in Smith v.

Ashcroft, “discretionary statutory ‘rights’ do not create liberty

or property interests protected by the Due Process Clause.”                   295

F.3d 425, 430 (4th Cir. 2002).                 Accordingly, Igwebuike’s due

process claim must fail.


                                         16
                                     IV.

           For   the   foregoing    reasons,     we   reverse    the   district

court’s order dismissing Igwebuike’s habeas corpus petition for

lack of subject matter jurisdiction. Our ruling requires a limited

remand.   We remand for the district court to enter an order giving

the District Director sixty days in which to begin reconsideration

of Igwebuike’s eligibility for adjustment of status, using the

appropriate   evidentiary    standard      and   complying      with   8   C.F.R.

§ 103.2(b)(8).     If Igwebuike is determined to be eligible for

consideration for adjustment of status, the Director may, of

course, decide whether that discretionary relief is warranted.                 If

the Director provides satisfactory proof, within ninety days of the

district court’s order, that the reconsideration is under way, the

court may dismiss the case.        If the Director fails to comply, the

district court will issue a writ of habeas corpus.



                                                      REVERSED AND REMANDED
                                                          WITH INSTRUCTIONS




                                     17
