                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                 June 2, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                         ____________________                      Clerk

                             No. 04-60097
                         ____________________


IDRISSA DIARRA

                  Petitioner
v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

               Respondent
_________________________________________________________________

              Petition for Review of an Order of the
                   Board of Immigration Appeals
                        BIA No. A75 221 863
_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:*

     Petitioner Idrissa Diarra, a citizen and native of Guinea,

was found to be a removable alien by a United States immigration

court in 2001.    Subsequently, the Board of Immigration Appeals

affirmed this decision.    Diarra now petitions for review of the

decision of the Board of Immigration Appeals, arguing that: (1)

he was improperly classified as an “arriving alien”; (2) his

request for a continuance to pursue his adjustment of status


     *
          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that this opinion should not be published and is not precedent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.
application was improperly denied; and (3) his request for

cancellation of removal should have been granted.    For the

following reasons, we DISMISS in part and DENY in part the

petition.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Diarra entered the United States for the first time in 1989

as a nonimmigrant visitor.   He overstayed his visa and, on April

9, 1996, applied for an adjustment of status with the Immigration

and Naturalization Service (“INS”).1   While his application was

pending, Diarra left the United States on two occasions, both

pursuant to an authorization of advance parole from the INS.

First, he was out of the country from October 10, 1996 until

January 30, 1997.   Second, he was out of the country from July

29, 1997 until April 25, 1998.   The I-512 advance parole document

that Diarra received from the INS stated:

     Subject has application for “permanent residence” pending
     in the Houston District Office. Note: This authorization
     will permit you to resume your application for adjustment
     of status on your return to the United States.

     While Diarra was out of the country, the INS invited him on

three occasions to an adjustment interview.   He claims not to

have received the invitations, and he did not respond to them.

Accordingly, his application for adjustment of status was denied.


     1
          The INS ceased to exist on March 1, 2003, and the
Department of Homeland Security now performs its functions. Since
the events relevant to Diarra’s petition occurred before the INS’s
dissolution, we will refer to the agency as the “INS.”

                                 2
Subsequently, on May 15, 2001 (after Diarra had returned to the

United States for the second time), the INS served him with a

Notice to Appear (“NTA”) that charged him with being an arriving

alien subject to removal.   On May 18, 2001, the INS commenced

removal proceedings against Diarra in Houston.

     On November 20, 2001, a removal hearing was held in Houston

immigration court.   At the hearing, Diarra denied being an

“arriving alien” but admitted to having no valid entry document.

The immigration court held that Diarra was removable.   Diarra

then filed a motion asking that the proceedings be continued

because his new wife, a lawful permanent resident whom he married

twelve days before the hearing, had filed an I-130 visa petition

on his behalf.2   Because the immigration judge found Diarra to be

an arriving alien, it held that he could not apply for an

adjustment of status and, accordingly, denied his request for a

continuance.

     At a subsequent hearing on January 29, 2002, Diarra asked

the immigration court for permission to apply for cancellation of

removal.3   On August 26, 2002, Diarra testified in support of his

     2
          This was Diarra’s second marriage. His first marriage
was the subject of his previous adjustment of status application
that was denied.
     3
          The Attorney General has discretion to cancel a non-
permanent resident’s removal if the alien demonstrates: (1) ten
years of continuous presence; (2) good moral character; (3) a lack
of certain criminal convictions; and (4) exceptional and extremely
unusual hardship to a qualifying relative. 8 U.S.C.
§ 1229b(b)(2000).

                                 3
request for cancellation.    The immigration judge denied his

application, finding that Diarra had failed to establish: (1) ten

years of physical presence in the United States (because of his

two absences); and (2) an exceptional and extremely unusual

hardship to a qualifying relative.       Diarra was then granted a

voluntary departure, and he appealed the immigration judge’s

decision to the Board of Immigration Appeals (“BIA”).

     On January 14, 2004, the BIA, without issuing a written

opinion, affirmed the immigration judge’s decision.       Diarra

subsequently filed the instant petition for review.

                      II.   STANDARD OF REVIEW

     “Although this Court generally reviews decisions of the BIA,

not immigration judges, it may review an immigration judge’s

decision when, as here, the BIA affirms without additional

explanation.”   Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.

2003).   “[T]his Court must affirm the decision if there is no

error of law and if reasonable, substantial, and probative

evidence on the record, considered as a whole, supports the

decision’s factual findings.”      Id.

                            III.   ANALYSIS

A.   Diarra’s Designation As an “Arriving Alien”

     Diarra first argues that he should not have been classified

as an “arriving alien” because his travel was pursuant to a grant

of advance parole.   Diarra notes that his I-512 states that he


                                    4
had an application for adjustment of status pending, and it

explicitly permitted him to resume his application upon his

return to the United States.   Thus, he argues that this advance

parole document authorized him to take back the status he left

when he applied for parole and to resume his adjustment

application.   Diarra also invites this court’s attention to Joshi

v. Immigration and Naturalization Service, 720 F.2d 799, 803-04

(4th Cir. 1983).   Diarra states that the petitioner in Joshi,

like Diarra, entered the United States lawfully as a

nonimmigrant, filed an adjustment of status application, and

traveled out of the country pursuant to a grant of advance

parole.   According to Diarra, the Fourth Circuit held that Joshi

was not an “arriving alien” when he returned to the United

States.   Diarra argues that this court should similarly find that

he is not an “arriving alien.”

     Diarra was clearly an “arriving alien.”   Under 8 C.F.R.

§ 1.1(q):

     The term arriving alien means an applicant for admission
     coming or attempting to come into the United States at a
     port-of-entry, or an alien seeking transit through the
     United States at a port-of-entry, or an alien interdicted
     in international or United States waters and brought into
     the United States by any means, whether or not to a
     designated port-of-entry, and regardless of the means of
     transport. An arriving alien remains such even if paroled
     pursuant to section 212(d)(5) of the [INA], except that
     an alien who was paroled before April 1, 1997, or an
     alien who was granted advance parole which the alien
     applied for and obtained in the United States prior to
     the alien's departure from and return to the United
     States, shall not be considered an arriving alien for
     purposes of section 235(b)(1)(A)(i) of the [INA].

                                 5
Because Diarra was last paroled into the country after April 1,

1997, and because § 235(b)(1)(A)(i) of the INA (providing for

expedited removal) is not at issue in this case, Diarra falls

within the definition of an “arriving alien.”       See id.    Diarra’s

reliance on Joshi for a contrary result is misplaced.         First,

Joshi is not binding precedent in this circuit.      Second, Joshi

was decided over twenty years ago, more than a decade before the

enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”).      In Joshi, the Fourth

Circuit applied the Fleuti doctrine, under which an alien is not

considered to have “entered” the United States, pursuant to the

former 8 U.S.C. § 1101(a)(1), if his departure from the United

States was an “innocent, casual, and brief excursion.”         See

Joshi, 720 F.2d at 801; see also Rosenberg v. Fleuti, 374 U.S.

449, 462 (1963).   The IIRIRA, however, replaced the term “entry”

with the terms “admission” and “admitted,” which are defined as:

     with respect to an alien, the lawful entry of the alien
     into the United States after inspection and authorization
     by an immigration officer. (B) An alien who is paroled
     under section 212(d)(5) . . . shall not be considered to
     have been admitted.

8 U.S.C. § 1101(a)(13)(A), (B); see also Zalawadia v. Ashcroft,

371 F.3d 292, 294-95 & n.3.   Thus, under the law as it now

exists, Diarra, who was paroled into the United States, is by

definition an “arriving alien.”       See 8 U.S.C. § 1101(a)(13)(A); 8

C.F.R. § 1.1(q).   Accordingly, the immigration court’s


                                  6
determination that Diarra was an “arriving alien” was supported

by substantial evidence, and Diarra’s petition is denied insofar

as it pertains to his classification as an “arriving alien.”

B.   Diarra’s Motion for a Continuance

     Diarra next argues that it was error for the immigration

court to deny his request to continue his case to allow the INS

to adjudicate the I-130 Petition for Alien Relative filed by his

new wife.   Diarra notes that at the time she filed this

application, she was a lawful permanent resident with a pending

Application for Naturalization.   Diarra claims that the

immigration judge wrongly denied him the opportunity to pursue

his application for adjustment of status predicated on this

petition.   In support of this argument, he notes that his I-512

advance parole document specifically allowed him to resume his

application for adjustment of status upon his return to the

United States.   Additionally, in a supplemental letter brief, he

invites the court’s attention to a recent First Circuit case,

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), in which the

First Circuit allowed an alien in removal proceedings to apply

for an adjustment of status.

     Diarra’s contention that he should have been permitted to

pursue his application for adjustment of status before the

immigration court fails.   First, the I-512 advance parole

document provided only that Diarra would be permitted to pursue



                                  7
his application for adjustment of status that was pending at the

time he was granted advance parole, i.e., the application based

on his first marriage.   See 8 C.F.R. § 245.2(a)(1).     This

application, however, had already been denied, and Diarra was not

attempting to renew it before the immigration court.     Rather,

Diarra was attempting to pursue a different application for

adjustment of status based upon his second marriage.

Accordingly, his claim that the I-512 allowed him to pursue this

application for adjustment of status fails.

     With respect to Diarra’s citation to Succar, we need not

address this argument because it is waived.   Under 8 C.F.R.

§ 245.1(c)(8), an arriving alien in removal proceedings is

prohibited from applying for an adjustment of status.     In Succar,

the petitioner challenged the validity of § 245.1(c)(8), and the

First Circuit held that § 245.1(c)(8) was invalid.     Succar, 394

F.3d at 36.   This circuit, however, has not held that

§ 245.1(c)(8) is invalid, and Succar is not binding precedent

here.4   Moreover, unlike the petitioner in Succar, Diarra never

     4
          The only Fifth Circuit case to mention § 245.1(c)(8) is
Doria v. Ashcroft, No. 03-60383, 2004 WL 1161837, at *1 (5th Cir.
May 25, 2004) (per curiam) (unpublished).      In Doria, the court
cited 8 C.F.R. § 245.1(c)(8) and held that “[b]ecause Doria’s
second adjustment application was not filed until after he had been
paroled into the United States and removal proceedings had been
instituted, the [immigration judge] was correct in concluding that
he was not permitted to renew his adjustment application . . . .”
Doria, 2004 WL 1161837, at *1. Similarly, again citing
§ 245.1(c)(8), the court stated that Doria “is ineligible for
adjustment of status as a result of his status as an arriving alien
in removal proceedings.” Id. at *2.

                                 8
challenged the validity of § 245.1(c)(8) before the immigration

court or in his petition for review to this court.   In fact,

Diarra never mentioned § 245.1(c)(8) in his petition for review.

After briefing was completed in this case, the government

requested the opportunity to address Succar in a supplemental

letter brief.   Only then did Diarra, in a supplemental letter

brief of his own, claim that § 245.1(c)(8) is invalid.   However,

under FED. R. APP. P. 28(a)(9)(A), an appellant’s brief must

contain the “appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on

which the appellant relies.”   Likewise, we have consistently held

that issues that are not clearly designated in the appellant’s

initial brief are normally deemed abandoned.   See St. Paul

Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (5th Cir. 2000)

(“Generally, we deem abandoned those issues not presented and

argued in an appellant’s initial brief, nor do we consider

matters not presented to the trial court.”).   Thus, because

Diarra did not challenge § 245.1(c)(8) in his petition for

review, we consider his challenge waived.5   Accordingly, the

     5
          Additionally, as the government notes, Diarra was not
even prima facie eligible for an adjustment of status based upon
his second marriage because: (1) the visa petition had not been
approved by the INS; and (2) even if the visa petition had been
approved, no immigrant visa was “immediately available” to him.
This follows from the fact that his new wife was only a lawful
permanent resident, not a U.S. citizen, and any visa petition she
filed would be subject to the numerical limitations of preference
visas. See 8 U.S.C. §§ 1151(b)(2)(A)(i) & 1153. Because 8 U.S.C.
§ 1255(a) states that an alien is only eligible for an adjustment

                                 9
immigration court’s denial of Diarra’s request for a continuance

to pursue his adjustment of status application was supported by

substantial evidence, and Diarra’s petition with respect to his

request for a continuance is denied.

C.   Diarra’s Request for Cancellation of Removal

     Finally, Diarra contends that the immigration court erred

when it denied his request for cancellation of removal.   First,

he contends that the immigration court erred in finding that he

lacked ten years of continuous physical presence in the United

States, which is a requirement for the cancellation of removal.

See 8 U.S.C. § 1229b(b).   Diarra notes that § 1229b(b) states

that an alien shall be considered to have failed to maintain

physical presence in the United States if he has departed the

United States for a single period that exceeds ninety days or for

any periods that, in the aggregate, total 180 days.   Diarra

argues, however, that the statute is silent with respect to

absences pursuant to a grant of advance parole.   He also states

that his two absences were compelled by extenuating circumstances

(i.e., his father’s sickness and death) and were both pursuant to

a grant of advance parole.   According to Diarra, he should not be

punished for his departures because of the grant of advance

parole.



of status if “an immigrant visa is immediately available to him at
the time his application is filed[,]” Diarra was not prima facie
eligible for an adjustment of status.

                                10
     Second, Diarra states that the immigration court erred in

finding that he did not meet the threshold for the exceptional

and extremely unusual hardship requirement for cancellation of

removal.   Diarra argues that this court can review this element

of a cancellation of removal claim because it is a legal

question, not a discretionary determination.   He then contends

that he has recently been married and has two stepchildren.

According to Diarra, one of his stepchildren has lived his entire

life in the United States and the other needs Diarra’s help

(e.g., to translate his homework from French to English).   Diarra

claims that returning his stepchildren to Africa would result in

a psychological hardship, and he accordingly argues that he has

met the “exceptional and extremely unusual hardship” prong.

     This court does not have jurisdiction to address Diarra’s

arguments regarding his request for a cancellation of removal.

This follows from the fact that his request for cancellation of

removal was pursuant to 8 U.S.C. § 1229b(b).   Section

1252(a)(2)(B) of Title 8 of the United States Code provides:

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

     (i) any judgment regarding the granting of relief under
     section 1182(h), 1182(i), 1229b, 1229c, or 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.


                                11
8 U.S.C. § 1252(a)(2)(B) (emphasis added).    Because the removal

proceedings in this case commenced after the effective date of

these statutory restrictions on judicial review (April 1, 1997),

§ 1252(a)(2)(B) is applicable to the present case.    This

provision eliminates jurisdiction over decisions involving the

exercise of discretion, as opposed to legal or non-discretionary

questions.    Mireles-Valez v. Ashcroft, 349 F.3d 213, 216 (5th

Cir. 2003).   This court has held that an immigration court’s

determination as to the “exceptional and extremely unusual

hardship” prong of § 1229b involves the exercise of discretion.

Rueda v. Ashcroft, 380 F.3d 831 (5th Cir. 2004).     In Rueda, this

court stated that it lacked jurisdiction to address the

petitioner’s claim that the immigration court erred in finding

that the petitioner had failed to demonstrate the requisite

hardship for cancellation.    Id. at 831.   Accordingly, Diarra’s

petition, insofar as it regards a challenge to the hardship

determination, is dismissed for lack of jurisdiction.

     Additionally, this court need not consider Diarra’s argument

regarding physical presence because even if he satisfies the

physical presence requirement, this court lacks jurisdiction to

review the discretionary determination that he failed to meet the

hardship requirement.    Romero-Torres v. Ashcroft, 327 F.3d 887,

892 (9th Cir. 2003) (holding that because the court lacked

“jurisdiction to review the BIA’s discretionary determination

that an alien failed to satisfy the ‘exceptional and extremely

                                 12
unusual hardship’ requirement for cancellation of removal,” it

would not consider the petitioner’s challenge to the court’s

finding regarding a lack of physical presence); Morales Ventura

v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003) (holding that

because the court lacked jurisdiction to review the petitioner’s

hardship challenge, her challenge regarding her continuous

presence became moot).

                         IV.   CONCLUSION

     For the foregoing reasons, the petition for review is

DISMISSED for lack of jurisdiction insofar as it pertains to

Diarra’s cancellation of removal claim.     The petition is DENIED

in all other respects.




                                13
