     Case: 09-60524     Document: 00511158408          Page: 1    Date Filed: 06/29/2010




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

                                                 FILED
                                                                            June 29, 2010
                                     No. 09-60524
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GOVINDAN KAVERI,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A076 135 341


Before WIENER, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Govindan Kaveri, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal from the
Immigration Judge’s (IJ) order of removal, which pretermitted a decision on
adjustment of status under 8 U.S.C. § 1255(a). Kaveri does not challenge the
determinations that he is removable under 8 U.S.C. § 1227(a)(1)(B) as an alien
who was admitted as a nonimmigrant but remained longer than permitted, or
that he is ineligible for a waiver of removability under 8 U.S.C. § 1227(a)(1)(H).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60524    Document: 00511158408 Page: 2        Date Filed: 06/29/2010
                                 No. 09-60524

      Our review of the denial of Kaveri’s Section 1255(a) application is limited
to “constitutional claims or questions of law.”     8 U.S.C. § 1252(a)(2)(B)(i),
(a)(2)(D). The Attorney General has the discretion to adjust the status of an alien
who was inspected and admitted into the United States to that of a lawful
permanent resident “if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filed.” § 1255(a) (INA
§ 245(a)); 8 C.F.R. § 1245.1(a). In relevant part, the IJ determined that under
8 U.S.C. § 1154(c), Kaveri was not eligible to receive an immigrant visa because
the evidence supported a determination by immigration authorities that Kaveri
had entered into his first marriage for the purpose of evading the immigration
laws. Kaveri’s arguments that the IJ’s finding failed to properly apply BIA
precedent or to properly allocate the burden of proof are unavailing. Kaveri does
not argue that his second wife’s immediate relative visa petition has been
approved or that such a visa would be immediately available if he applied for
adjustment.    We find no legal error in the determination that Kaveri was
ineligible for adjustment of status. Kaveri’s petition for review is DENIED.




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