          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  April 23, 2008
                                No. 07-60281
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

JAVID SHAHABI NAGHDI, also known as Gregorio Reynolds, also known as
David Naghdi, also known as Khukon Reynolds, also known as Behrouz
Mansouri

                                            Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A24 507 572


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Javid Shahabi Naghdi, a native and citizen of Iran, has filed a petition for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an
Immigration Judge’s (IJ) order denying his special motion to reopen removal
proceedings to seek a waiver of deportation under 8 C.F.R. § 1003.43.




      *
      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should not be published and is not precedent except under the limited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. 07-60281

      Section 1003.44 permits aliens who meet certain requirements to seek
relief from removal under the former § 212(c) of the Immigration and Nationality
Act. However, the section specifically states, “A motion under this section will
not be granted with respect to any conviction where an alien has previously been
denied section 212(c) relief by an immigration judge or by the Board on
discretionary grounds.” 8 C.F.R. § 1103.44. Naghdi asserts that the IJ failed to
weigh relevant factors in a meaningful way and therefore did not exercise
discretion in denying Naghdi § 212(c) relief in 1997. Naghdi further asserts
that, because the BIA did not rule on the issue, there is no final ruling that
would bar relief under § 1003.44.
      Naghdi has failed to show an abuse of discretion in the BIA’s
determination that the IJ denied Naghdi § 212(c) relief in the exercise of his
discretion. See Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993). To exercise
discretion, an IJ must balance “‘the adverse factors evidencing an alien’s
undesirability as a permanent resident with the social and humane
considerations presented [o]n his behalf.’” Molenda v. INS, 998 F.2d 291, 295
(5th Cir. 1993) (quoting Matter of Marin, 16 I & N Dec. 581, 584 (BIA 1978)).
Contrary to Naghdi’s assertions, a review of the IJ’s detailed opinion reveals that
the IJ conducted such a balancing test. The IJ set out a detailed explanation of
the testimony of Naghdi and the other witnesses, particularly as to the factors
that might support granting a waiver. In a separate section, the IJ set out the
law governing § 212(c) relief.1     The IJ then examined in detail Naghdi’s
credibility, an issue central to weighing the factors because of Naghdi’s reliance


      1
       Although the IJ’s decision issued two days after the general effective date
of the provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which included a provision eliminating 212(c) relief,
the transitional rules for IIRIRA indicated that the new rules did not govern in
the case of an individual, like Naghdi, who was in deportation proceedings as of
April 1, 1997. See Pub. L. 104-208, title III, div. C, §§ 304(b), 309(a), 110 Stat.
3009-597, 3009-625.

                                        2
                                   No. 07-60281

primarily on his testimony to establish many of the facts underlying his claim
for relief. Having determined that Naghdi was not a credible witness, the IJ
further determined that Naghdi withheld pertinent information on various
aspects of his case, thereby failing to meet his burden of proof on his fitness for
§ 212(c) relief. Implicit in the IJ’s findings is the weight that the IJ attributes to
the facts underlying Naghdi’s claims, the mechanics of the balancing test.
Because a review of the record demonstrates that the IJ did, in fact, exercise
discretion by balancing relevant factors, Naghdi has failed to show that the BIA
abused its discretion when it determined that an IJ previously denied Naghdi
§ 212(c) relief in the exercise of his discretion and that, therefore, § 1003.44
precluded reopening the matter. Accordingly, Naghdi’s petition for review is
DENIED.




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