     Case: 11-60480     Document: 00511909861         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-60480
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL ODHIAMBO OWENGA,

                                                  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. A096 540 352


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Michael Odhiambo Owenga, a native and citizen of Kenya, seeks a petition
for review of the order of the Board of Immigration Appeals (BIA) denying his
application for cancellation of removal pursuant to 8 U.S.C. § 1229b. Owenga
also moves for the appointment of counsel.
        We generally review only the BIA’s decision except to the extent that the
immigration judge’s (IJ) decision influences the BIA. Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007). We lack jurisdiction to review the discretionary denial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60480    Document: 00511909861      Page: 2   Date Filed: 07/03/2012

                                  No. 11-60480

of Owenga’s request for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i);
Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); Rueda v. Ashcroft, 380 F.3d
831, 831 (5th Cir. 2004).
      Although we are not precluded from reviewing claims raising
constitutional or purely legal questions, see § 1252(a)(2)(D), Owenga has not
demonstrated that the BIA’s improper inclusion of a driving while intoxicated
offense among his criminal convictions actually caused him prejudice. The BIA’s
decision makes clear that while it did consider Owenga’s criminal history in
totality, it gave particularly significant weight to Owenga’s theft conviction and
his conviction for evading arrest, noting the recency and the seriousness of both
convictions.   The BIA explicitly concluded that the fact that Owenga had
committed two serious crimes within months of each other, had committed the
evading arrest crime while on probation, and had placed the community at risk
by engaging the police in a high-speed chase in order to evade arrest, had
essentially cancelled out any positive equities that may have militated in favor
of the grant of discretion. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir.
2004) (rejecting petitioner’s due process claim where she failed to allege that she
suffered from substantial prejudice). Nor has Owenga shown that the BIA
improperly relied upon errors made by the IJ. See Zhu, 493 F.3d at 593; Assaad
v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Accordingly, Owenga’s petition for
review is DISMISSED, IN PART, FOR LACK OF JURISDICTION and
DENIED, IN PART.        Owenga’s motion for appointment of counsel is also
DENIED.




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