                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 11-10969                         APRIL 6, 2012
                               ________________________                    JOHN LEY
                                                                            CLERK
                                Agency No. A030-710-742



MELIH ODEMIS,

                                                                                    Petitioner,

                                            versus



U.S. ATTORNEY GENERAL,

                                                                                  Respondent.


                              ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                              ________________________

                                       (April 6, 2012)

Before WILSON and MARTIN, Circuit Judges, and ALBRITTON,* District Judge.

       *
          Honorable W. Harold Albritton, Senior United States District Judge for the Middle
District of Alabama, sitting by designation.
PER CURIAM:

       Melih Odemis challenges a decision by the Board of Immigration Appeals

(BIA) to deny him a waiver under 8 U.S.C. § 1182(h). Such a waiver would have

permitted Odemis to stay in the United States with his U.S. family, despite his

prior commission of a crime involving moral turpitude, which would normally

render him ineligible for admission. See 8 U.S.C. § 1182(a)(2)(A)(i).

       The BIA’s denial of the § 1182(h) waiver—also commonly referred to as a

Section 212(h) waiver—had two bases. The first was the BIA’s legal conclusion

that Odemis was statutorily ineligible for the waiver. The second basis was the

BIA’s discretionary refusal under § 1182(h) to consent to Odemis’ admission to

the United States. Because each basis constituted an independent and adequate

rationale for the BIA’s denial of the Section 212(h) waiver, Odemis has the burden

on appeal of showing why neither basis for denying the waiver was legally valid.

       Odemis does not meet this burden. Regardless of whether Odemis can

demonstrate statutory eligibility for the waiver, he fails to show legal error in the

BIA’s discretionary refusal to consent to his admission.1

       Odemis advances two arguments for why the BIA’s refusal to consent to his


       1
        In reviewing the BIA’s exercise of its discretion here, this Court’s review is limited to
questions of law and constitutional claims, see 8 U.S.C. 1252(a)(2)(B)–(D), which we review de
novo, see Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).

                                                2
admission was legally invalid. First, he contends that the BIA’s refusal was

premised at least in part on its erroneous belief that Odemis had committed an

aggravated felony. Setting aside for now our doubts about whether Odemis can

properly raise this issue before this Court, this contention lacks merit. The BIA

itself never mentioned the aggravated felony classification in explaining why,

independent of its analysis regarding Odemis’ statutory eligibility, it would

exercise its discretion to refuse to grant the waiver. Beyond this, by explicitly

stating that it would deny the waiver even if Odemis were statutorily eligible for it,

the BIA made clear that the exercise of its discretion to deny the waiver was not

tied to its belief that Odemis had committed an aggravated felony. Thus, Odemis

is simply incorrect when he claims that “[t]he basis of the BIA’s decision would

no longer be valid if Mr. Odemis’ convictions were not aggravated felonies.”

      The second argument Odemis advances is that, by presuming Odemis to be

an aggravated felon and by otherwise misstating his criminal record, the BIA

violated Odemis’ due process rights in exercising its discretion under § 1182(h).

This contention also lacks merit. Even if Odemis were presumed to have been an

aggravated felon without sufficient evidence, the fault probably lay with Odemis,

whose prior counsel conceded that Odemis was an aggravated felon. More

importantly, it is not clear if or how this presumption factored at all into the BIA’s

                                          3
independent denial of the Section 212(h) waiver based on its discretion. In

addition, the BIA did not “misstate” Odemis’ criminal record. Even if it

uncharitably characterized Odemis’ criminal record, there was nothing factually or

legally erroneous about what it said, let alone any evidence that an error of

potentially constitutional magnitude had been committed.

      Because Odemis has failed to identify a cognizable legal error in the way

the BIA exercised its discretion when refusing to grant Odemis a Section 212(h)

waiver, this Court has no further basis for reviewing the BIA’s final order of

removal.

      AFFIRMED.




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