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

                                                 FILED
                                                                           August 21, 2009
                                     No. 08-60817
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

IDEHEN AMAS IGBINOBA

                                                   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. A072 784 425


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Idehen Amas Igbinoba, a native and citizen of Nigeria, petitions this court
for review of the Board of Immigration Appeals’ (BIA) decision dismissing his
appeal of the Immigration Judge’s (IJ) denial of his application to adjust status
pursuant to 8 U.S.C. § 1255(i). “When, as here, the BIA affirms the [IJ] and
relies on the reasons set forth in the [IJ’s] decision, this court reviews the
decision of the [IJ] as well as the decision of the BIA.” Ahmed v. Gonzales, 447
F.3d 433, 437 (5th Cir. 2006) (citation omitted). We review factual findings

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-60817

under the substantial evidence standard, which requires that the decision be
affirmed unless the “evidence compels a contrary conclusion.” Carbajal-Gonzalez
v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted). We conduct a de novo
review of the BIA’s legal conclusion that an alien is statutorily ineligible for
adjustment of status. Pei-Chi Tien v. INS, 638 F.2d 1324, 1327 (5th Cir. 1981).
      Igbinoba sought to adjust status based on a Petition for Alien Relative
(PAR) filed by his wife, a United States citizen; the IJ, however, determined that
Igbinoba was inadmissible due to his Texas state convictions for money
laundering and forgery, which the IJ found were crimes involving moral
turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ further determined that
Igbinoba had failed to establish pursuant to § 1182(h)(1)(B) that his wife would
suffer extreme hardship if he were denied admission to the country. We assume
the parties’ familiarity with the remaining underlying facts and lengthy
procedural history of this case.
      In the instant petition for review, Igbinoba contends (1) that the IJ
violated his due process rights by failing to obtain a waiver of the right to
counsel from him, (2) that his admissions regarding his state convictions for
money laundering and forgery were unlawfully obtained, and (3) that the IJ
improperly classified his convictions as crimes involving moral turpitude.
      First, the record shows that Igbinoba failed to raise his due process claim
before the BIA. As the BIA had the power to address this claim through a
motion to reopen, it does not fall under the exception to the exhaustion
requirement for due process claims and this court is thus without jurisdiction to
consider it. See 8 U.S.C. § 1252(d)(1); see Goonsuwan v. Ashcroft, 252 F.3d 383,
389-390 & n.13 (5th Cir. 2001) (recognizing exception “when administrative
remedies are inadequate” or where “resort to the agency would be futile because
the challenge is one that the agency has no power to resolve in the applicant’s
favor”). Even assuming that Igbinoba had not waived this due process claim, it
would still fail because he has not shown that he suffered substantial prejudice

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as a result of the denial of counsel. See Ogbemudia v. INS, 988 F.2d 595, 598
(5th Cir. 1993). Accordingly, we dismiss the petition for review, in part, for lack
of jurisdiction over this claim.
      Second, Igbinoba contends that his admissions regarding his convictions
for money laundering and forgery were unlawfully obtained because the IJ failed
to provide him with a definition and the essential elements of the crimes. The
record shows that Igbinoba failed to raise this argument before the BIA.
Accordingly, we dismiss the petition for review, in part, for lack of jurisdiction
over this claim. See § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir. 2001).
      Third, Igbinoba argues that the IJ improperly classified his convictions as
crimes involving moral turpitude. Because Igbinoba sought relief from removal
based on an exercise of the Attorney General’s discretion, he had the burden to
establish that he was eligible for it. See 8 C.F.R. § 1240.8(d) (stating that the
alien “shall have the burden of establishing that he or she is eligible for any
requested benefit or privilege and that it should be granted in the exercise of
discretion”). Furthermore, the burden was on Igbinoba to establish that he was
not inadmissible under § 1182(a)(2)(A)(i)(I). See § 1240.8(c) (stating that the
alien “must prove that he or she is clearly and beyond a doubt entitled to be
admitted to the United States and is not inadmissible as charged”). Igbinoba
failed to make the required showing as he failed to demonstrate how his offenses
were not crimes involving moral turpitude. Accordingly, we deny the petition for
review with respect to this claim.
      Accordingly, Igbinoba’s petition for review is DENIED IN PART and
DISMISSED IN PART.




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