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

                                                FILED
                                                                  April 21, 2009
                                No. 08-60529
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

BENSON OSAZEE

                                           Petitioner

v.

ERIC J HOLDER, US ATTORNEY GENERAL

                                           Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                              BIA No. A72 431 372


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
      In 1999, Benson Osazee, a native and citizen of Nigeria, filed an I-485
application for adjustment of status based on an I-130 visa petition filed by his
then-wife Selma Osazee (formerly Selma Harris), a United States citizen.
Osazee subsequently left the United States and in January 2004 was paroled
back into the country to pursue that application. On or about March 26, 2004,
his wife, Selma Osazee, withdrew her I-130 petition, and consequently the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-60529

United States Citizenship and Immigration Services (USCIS) denied the
adjustment application on or about March 31, 2004. In June 2004 Osazee and
his wife Selma divorced. In September 2005 Osazee married Dionne Michelle
Tomlinson-Osazee (“Dionne Osazee”), a United States citizen. On November 14,
2005, Dionne Osazee filed a Form I-130 on Osazee’s behalf. Also on November
14, 2005, Osazee filed his second I-485 application. The I-130 visa petition was
approved on August 24, 2006.       On November 13, 2006, the United States
Citizenship and Immigration Services (USCIS) denied Osazee’s I-485 application
for adjustment of status (and likewise denied his May 22, 2006 requested waiver
of inadmissability due to his early 1994 presentation of fraudulent documents).
      Thereafter, on or about November 20, 2006, the United States
Immigration and Customs Enforcement (ICE) initiated removal proceedings
against Osazee by filing a Notice to Appear (NTA) with the immigration court
in Houston, Texas, charging Osazee with removability as an alien who was
inadmissible because he was an intending immigrant without a valid immigrant
VISA. 8 U.S.C. § 1182(a)(7)(A)(i)(I). On or about March 15, 2007, Osazee
renewed in the immigration court his second I-485 application (i.e., that filed in
November    2006) and     his   referenced   May   2006   requested    waiver   of
inadmissibility, seeking to have the immigration judge (IJ) rule thereon. In a
hearing on the NTA in late March 2007 Osazee, through counsel, admitted the
relevant factual allegations in the NTA and conceded the charged removability.
      In April 2007 the ICE moved the IJ to pretermit ruling on Osazee’s second
I-485 application (that filed in November 2005). In the July 31, 2007 merits
hearing on the NTA, the IJ rendered an oral decision, ruling first that Osazee
was removable as charged. Then, agreeing with the ICE, the IJ ruled that he
(the IJ) lacked jurisdiction to rule on Osazee’s second I-485 application for
adjustment of status (that filed in November 2005). The IJ thereupon ordered
Ozasee removed to Nigeria, and “denied for want of jurisdiction” Ozasee’s I-485
application for adjustment of status.

                                        2
                                  No. 08-60529

      An IJ has jurisdiction to consider an application for adjustment of status
filed by an arriving alien placed in removal proceedings if: (1) the alien properly
filed the application with USCIS while in the United States; (2) the alien
departed from and returned to the United States under an advance grant of
parole to pursue “the previously filed application”; (3) USCIS denied the
application; and (4) the Department of Homeland Security placed the alien in
removal proceedings after the alien returned under parole or after denial of the
application.   8 C.F.R. § 1245.2(a)(1)(ii).      Osazee contends that the IJ’s
jurisdiction extends to any application for adjustment filed by an arriving alien
in removal proceedings, even an entirely new one, so long as the alien filed an
application before departing the country. Osazee supports this argument by
noting that the current regulation omits the term “renewed application” that
appeared in its predecessor. We recently rejected this very argument under
materially indistinguishable circumstances, relying on the plain language of the
regulation to find that an IJ only has jurisdiction to hear a “previously filed
application.” See Chambers v. Mukasey, 520 F.3d 445, 450 (5th Cir. 2008)
(quoting 8 C.F.R. § 1245.2(a)(1)(ii)(B)) (emphasis in original). We agree with the
Government that Chambers is dispositive, and that the IJ correctly determined
that he lacked jurisdiction to consider the adjustment application.
      Osazee next argues that the regulation is ultra vires because it conflicts
with 8 U.S.C. § 1255(a), which permits arriving aliens to apply for adjustment
of status. Contrary to Osazee’s contention, the current regulation does not
categorically exclude arriving aliens in removal proceedings from eligibility for
adjustment of status; it merely designates the adjudicatory forum for such
applications. See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1251 (11th Cir.),
cert. denied, 129 S.Ct. 146 (2008). We reject Osazee’s argument.1

      1
      See also 8 C.F.R. § 245.2 (USCIS jurisdiction unless IJ has jurisdiction
under 8 C.F.R. § 1245.2(a)(1)). Moreover, even if we were to accept Osazee’s
argument, our decision in Akhtar v. Gonzales indicates that even a categorical

                                        3
                                 No. 08-60529

      Finally, we note that Osazee’s initial brief failed to cite Chambers. In its
brief, the Government expressly relied on Chambers as controlling and pointed
out its omission from Osazee’s initial brief. Nevertheless, Osazee filed a reply
brief that again failed to address or even acknowledge Chambers. We remind
counsel of his duty to address controlling precedent.
                     PETITION FOR REVIEW DENIED.




exclusion would be permissible under 8 U.S.C. § 1255(a). See 450 F.3d 587,
594–95 (5th Cir. 2006).

                                        4
