                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                January 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-60544
                          Summary Calendar




                    SALEEM KASSAMALI RAHEEMANI,

                                                           Petitioner


                               VERSUS


      JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,


                                                           Respondent



               On Petition for Review of an Order of
                  the Board of Immigration Appeals




Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

      Saleem Kassamali Raheemani petitions this court to review a

Board of Immigration Appeals’ order denying his motion to reopen to

apply for adjustment of status.    Because we find the BIA did not

abuse its discretion, we AFFIRM.




  *
   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opinion should not be published and is not precedent except under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.
                                    I.

     Petitioner is a native and citizen of Pakistan, who was

admitted to the United States in 1995 as a visitor and permitted to

remain   until   February   1996.        In   2003,   the   Immigration   and

Naturalization Service (“INS”) issued a Notice to Appear, charging

him with removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), as an alien who remained in the United States longer

than permitted.    Raheemani admitted each of the allegations in the

Notice to Appear and conceded removability at his immigration

hearing. He requested voluntary departure, which was granted until

November 13, 2003.    No appeal was taken from that order.

     On August 18, 2003, Raheemani filed a motion to reopen for

adjustment of status with the immigration judge.            He asserted that

his alien labor certification application was approved and that he

was the beneficiary of an I-140 visa petition which was pending

approval, and therefore his removal proceedings should be reopened

to allow him to apply for adjustment of status.             The immigration

judge denied his motion to reopen, finding that the “approval of

the I-140 visa petition [was] highly problematic and the mere

filing of such a petition does not justify the reopening of a

case.” On appeal, the Board affirmed the immigration judge’s order

without opinion.    This appeal followed.

                                    II.

                                    A.

     The government argues that our decision in United States v.

                                     2
Assaad, 378 F.3d 471 (5th Cir. 2004) controls and that this court

lacks jurisdiction under section 242(a)(2)(B)(I) of the INA, 8

U.S.C.    §    1252(a)(2)(B)(I),   because   the   order    related   to   a

discretionary adjustment of status.       We disagree and conclude that

we have jurisdiction.

      Under     8   U.S.C.   §   1252(a)(2)(B)(i),   this    court    lacks

jurisdiction to review any order relating to the discretionary

adjustment of status pursuant to 8 U.S.C. § 1255.2            In Manzano-

Garcia v. Gonzalez, 413 F.3d 462 (5th Cir.2005), we addressed this

court’s jurisdiction to review a ruling on a motion to reopen under

INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). We stated that

we lacked jurisdiction over Manzano’s motion to reopen as it

related to his request for adjustment of status, “if the BIA had

actually made a discretionary determination on the merits to deny

such adjustment of status under INA § 245, 8 U.S.C. § 1255.”            Id.

at 468.       See also Medina-Morales v. Ashcroft, 371 F.3d 520, 526

(9th Cir.2004) (“If the denial of [the petitioner’s] motion to

reopen was a judgment regarding the granting of relief under . . .


  2
   8 U.S.C. § 1252(a)(2)(B)(i) provides:

  Notwithstanding any other provision of law, no court shall
  have jurisdiction to review --

  (i) any judgment regarding the granting of relief under
  section...1255 of this title, or (ii) any other decision or
  action of the Attorney General the authority for which is
  specified under this subchapter to be in the discretion of the
  Attorney General, other than the granting of relief under
  section 1158(a) of this title.

                                     3
§ 1255 . . . then we are without jurisdiction to review the

discretionary aspects of the BIA’s decision.”).

       In the instant case, the immigration judge denied Raheemani’s

motion to reopen after finding that “the approval of the I-140 visa

petition is highly problematic and the mere filing of such a

petition does not justify the reopening of a case.”            This statement

does   not   amount   to   a   decision    on   the   merits   of   Raheemani’s

adjustment of status claim.       Because the immigration judge’s order

was “not an adverse determination of the merits of [petitioner’s]

requested adjustment of status under § 1255,” this court is not

stripped of jurisdiction over the motion to reopen.                   Manzano-

Garcia, 413 F.3d at 469.

                                      B.

       We review the denial of a motion to reopen proceedings under

a highly deferential abuse of discretion standard. See Zhao v.

Gonzalez, 404 F.3d 295 (5th Cir.2005). See also Lara v. Trominski,

216 F.3d 487, 496 (5th Cir.2000)(“[M]otions for reopening of

immigration proceedings are disfavored...”)(quoting INS v. Doherty,

502 U.S. 314, 323, 112 S.Ct. 719).         The United States Supreme Court

has found that even if the petitioner makes out a prima facie case

of eligibility for suspension of removal, the BIA can deny the

motion to reopen if it finds “the movant has not introduced

previously unavailable, material evidence.” INS v. Abudu, 485 U.S.

94, 104-05, 108 S.Ct. 904 (1988); see also, 8 C.F.R. § 1003.2(a)


                                      4
(“The Board has discretion to deny a motion to reopen even if the

party moving has made out a prima facie case for relief.”).             We

will not disturb the BIA’s discretion “so long as it is not

capricious, racially invidious, utterly without foundation in the

evidence, or otherwise so aberrational that it is arbitrary rather

than the result of any perceptible rational approach.”         Pritchett

v. INS, 993 F.2d 80, 83 (5th Cir.1993)(citing Osuchukwu v. INS, 477

F.2d 1136, 1141-42 (5th Cir.1984)).

      Raheemani argues that the BIA’s decision was legally erroneous

for two reasons.   First, he contends the government failed to file

a timely opposition, and thus the motion should have been deemed

unopposed.   See 8 C.F.R. §1003.23(b)(1)(iv).        Second, he argues

that the immigration judge based his denial on “plainly erroneous

grounds–not any coherent discretionary one.”3 As petitioner points

out, there are “at least” three reasons a motion to reopen may be

denied: (1) failure of applicant to make a prima facie case for

underlying   substantive   relief   sought;   (2)   failure   to   produce

previously unavailable material evidence; and (3) if the ultimate

relief sought is a discretionary decision (such as adjustment of

status), the BIA may “leap ahead...over the two threshold concerns

(prima facie case and new evidence/reasonable explanation), and

simply determine, that even if they were met, the movant would not


  3
   Particularly, petitioner argues that the immigration judge
committed legal error because he stated that Raheemani could await
the approval of his visa in Pakistan.

                                    5
be entitled to the discretionary grant of relief.”       Abudu, 485 U.S.

at 105.

         The immigration judge denied petitioner’s motion to reopen

because he found the “approval of the I-140 visa petition [was]

highly problematic and the mere filing of such petition does not

justify the reopening of a case.”        We do not find the BIA’s reasons

for denying the motion to be capricious, racially invidious, or

otherwise so aberrational that it is arbitrary rather than the

result of any perceptible rational approach.” Also, the failure of

the government to file an opposition to the motion to reopen does

not require that the district judge grant the motion.       The grant of

the motion remains discretionary even though it is unopposed.          The

immigration judge was not obliged to grant a motion to reopen based

on   a    “problematic”   pending   I-140   petition.   Under   the   very

deferential standard used to review denials of motions to reopen,

we cannot say that the Board erred in finding that the immigration

judged did not abuse his wide discretion.          We therefore deny the

petition to review.

           AFFIRMED.




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