     Case: 15-60185      Document: 00513351552         Page: 1    Date Filed: 01/21/2016




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

                                                                                 FILED
                                    No. 15-60185                           January 21, 2016
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
MARK CHIMWEMWE CHILEMBWE, also known as Mark Chilembwe, also
known as Mark Chiugala,

                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A205-870-658


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Mark Chimwemwe Chilembwe petitions this court for review of an order
by the Board of Immigration Appeals (BIA) determining that he was ineligible
for adjustment of status.         Chilembwe argues that he was entitled to an
adjustment of status under 8 U.S.C. § 1255(a), or was entitled to a waiver of
inadmissibility under 8 U.S.C. § 1182(h), despite his prior convictions.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-60185    Document: 00513351552       Page: 2   Date Filed: 01/21/2016


                                 No. 15-60185

Chilembwe also contends that he was deprived of his due process rights when
he did not have an opportunity to be heard on the inadmissibility charges, and
when the immigration judge (IJ) engaged in ex parte communication with
Chilembwe and failed to recuse himself from the proceedings. We review
factual findings for substantial evidence and questions of law de novo. Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
      As to Chilembwe’s first argument, he conceded that he was removable
based on overstaying his visa under 8 U.S.C. § 1227(a)(1)(B), then sought an
adjustment of status under § 1255(a), which required him to demonstrate that
he was admissible to the United States.           The Department of Homeland
Security (DHS) presented evidence that Chilembwe was convicted of a number
of criminal offenses, including possession of less than two ounces of marijuana,
which was a controlled substance conviction that rendered Chilembwe
inadmissible under § 1182(a)(2)(A)(i)(II). Chilembwe does not argue that this
conviction did not render him inadmissible; instead, he contends that DHS was
required, and failed, to prove that the § 1182(h) waiver did not apply. This is
incorrect. See Opie v. I.N.S., 66 F.3d 737, 739 (5th Cir. 1995). Further, as the
BIA stated, Chilembwe neither requested a waiver of inadmissibility under
§ 1182(h) nor argued that his marijuana conviction for less than two ounces
(approximately 56 grams) involved possession of less than thirty grams. By
failing to address the BIA’s conclusions that his marijuana conviction rendered
him inadmissible and that he failed to request a § 1182(h) waiver, Chilembwe
has abandoned any challenge to these issues by failing to brief them. See Thuri
v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
      As to Chilembwe’s due process arguments, he must establish that a due
process violation occurred and that the violation resulted in substantial
prejudice. See Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th Cir. 2000).



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    Case: 15-60185     Document: 00513351552      Page: 3    Date Filed: 01/21/2016


                                  No. 15-60185

“[D]iscretionary relief from removal, including an application for adjustment
of status, is not a liberty or property right that requires due process protection.”
Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). And even assuming that
the IJ’s alleged ex parte communication violated due process, Chilembwe fails
to make any allegation that the violation substantially prejudiced his case. See
Toscano-Gil, 210 F.3d at 473. Thus, Chilembwe has not demonstrated that his
due process rights were violated. The petition for review is DENIED. Any
outstanding motion is DENIED.




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