     Case: 11-60662     Document: 00511903832         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-60662
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ODEMELAM FRIDAY FRANK ADIELE, also known as Odemelan Friday Frank
Adiele, also known as Frank UWA,

                                                  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. A037 552 493


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Odemelam Friday Frank Adiele, a native and citizen of Nigeria, petitions
this court for review of an order of the Board of Immigration Appeals (BIA)
dismissing his appeal and affirming the Immigration Judge’s (IJ’s) order of
removal. Adiele was previously deported from the United States pursuant to
Section 241(a)(11) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1251(a)(11) (now 8 U.S.C. § 1227), based on a 1980 state conviction for


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60662     Document: 00511903832        Page: 2   Date Filed: 06/28/2012

                                  No. 11-60662

possession of marijuana. Adiele reentered the United States in 1984 and was
again ordered deported. The instant proceedings stem from his most recent
attempt, in 2009, to reenter the country.
        In 2011, the Department of Homeland Security (DHS) issued a notice to
appear (NTA) charging Adiele with being inadmissible under section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled substance offense, and
under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for attempting to obtain
admission to the United States by fraud. The DHS later charged Adiele with
being inadmissible as an alien not in possession of a valid immigrant visa or
entry     document    pursuant    to   INA     §     212(a)(7)(A)(i)(I),   8   U.S.C.
§ 1182(a)(7)(A)(i)(I), and as an alien seeking admission less than 20 years after
previously having been removed from the United States pursuant to INA
§ 241(a)(9)(A)(ii), 8 U.S.C. § 1182(a)(9)(A)(ii). Adiele denied the allegations set
forth in the NTA and requested relief from inadmissibility under INA § 212(h),
8 U.S.C. § 1182(h) and former INA §212(c).
        The IJ concluded that Adiele’s 1980 Illinois conviction for possession of
marijuana was a crime relating to a controlled substance and rendered Adiele
removable as charged under § 212(a)(2)(A)(i)(II). The IJ also concluded that
Adiele was removable under § 212(a)(7)(A)(i)(I) and § 212(a)(9)(A)(ii) and that
Adiele was not eligible for any waivers from inadmissibility.
        The BIA noted that Adiele did not dispute his removability and
determined that Adiele was “not prima facie eligible for any relief that would
waive his inadmissibility under” § 212(a)(7)(A)(i)(I), for being an immigrant not
in possession of a valid visa. The BIA concluded that because Adiele was
removable on that basis, it did not need to decide whether Adiele qualified for
or merited any relief that would overcome the other grounds for removal.
        Our jurisdiction over an immigration proceeding is governed by 8 U.S.C.
§ 1252. Section 1252(a)(2)(C) generally prohibits judicial review of any final

                                         2
   Case: 11-60662    Document: 00511903832       Page: 3   Date Filed: 06/28/2012

                                   No. 11-60662

order of removal against an alien who is removable by reason of having
committed certain designated criminal offenses, including a controlled substance
offense under 8 U.S.C. § 1227(a)(2)(B)(i).       See § 1252(a)(2)(C); Balogun v.
Ashcroft, 270 F.3d 274, 277-78 (5th Cir. 2001). However, we have jurisdiction
to determine whether a petitioner is an alien who is deportable, or inadmissible,
for committing an offense that bars our review. See Balogun, 270 F.3d at 278 &
n.11. Further, § 1252 does not bar judicial review of “constitutional claims or
questions of law raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section.” § 1252(a)(2)(D); see Larin-Ulloa v.
Gonzales, 462 F.3d 456, 461 (5th Cir. 2006). Thus, we retain jurisdiction to
review constitutional claims and questions of law associated with a claim for
discretionary relief. See § 1252(a)(2)(D).
      Although Adiele asserts that his state conviction for possession of
marijuana should not render him inadmissible, he has failed to demonstrate any
error in the determination that he is inadmissable under § 212(a)(2)(A)(i)(II), as
an alien who has been convicted of a controlled substance offense, and therefore
removable under § 1227(a)(2)(B)(i).
      Adiele further asserts that because the IJ erred in determining that his
drug offense involved more than 30 grams of marijuana, he was wrongfully
denied a waiver of inadmissibility under § 212(h). He also argues that he was
entitled to relief under § 212(c), but he has failed to exhaust that issue by failing
to raise it before the BIA. 8 U.S.C. § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004) (“An alien fails to exhaust his administrative remedies with
respect to an issue when the issue is not raised in the first instance before the
BIA – either on direct appeal or in a motion to reopen.”) (internal quotation
marks and citation omitted).
      In any event, Adiele has failed to raise a colorable constitutional claim or
a question of law regarding his eligibility for a discretionary waiver of
inadmissibility under § 212(h). Section 212(h) gives the Attorney General the

                                         3
   Case: 11-60662    Document: 00511903832       Page: 4   Date Filed: 06/28/2012

                                   No. 11-60662

discretion to “waive the application of [§ 212(a)(2)(A)(i)(II)] insofar as it relates
to a single offense of simple possession of 30 grams or less or marijuana” under
certain enumerated circumstances. § 1182(h). Although the IJ determined that
Adiele was ineligible for a waiver under § 212(h) because his drug offense
involved more than 30 grams, the BIA did not rely on that determination or
adopt the IJ’s findings regarding the drug amount or Adiele’s eligibility for a
waiver under § 212(h).
      Because the BIA engaged in its own analysis and affirmed the removal
order without adopting the IJ’s decision and analysis, our review is limited to the
BIA’s decision. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Thus,
because Adiele is removable as an alien convicted of a controlled substance
offense, and because Adiele raises no colorable constitutional claim or question
of law pertaining to the BIA’s decision, we lack jurisdiction over his petition. See
§ 1252(a)(2)(C); Balogun, 270 F.3d at 277-78.
      Accordingly, Adiele’s petition for review is DISMISSED.




                                         4
