                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1718


MUSTAFA MOHAMED SALAMA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 24, 2009                 Decided:   October 22, 2009


Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Thomas A. Elliot, ELLIOT & MAYOCK, LLP, Washington,
D.C., for Petitioner. James A. Hurley, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.        ON BRIEF:
Fabienne Chatain, Thomas H. Tousley, ELLIOT & MAYOCK, LLP,
Washington, D.C., for Petitioner.  Gregory G. Katsas, Assistant
Attorney General, Stephen J. Flynn, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Mustafa Mohamed Salama petitions for review of an order

denying   him    an    adjustment    of    status.         Because    he    failed    to

challenge the basis for the decision of the Board of Immigration

Appeals and instead focused solely on the immigration judge’s

decision, he has waived his challenge to the Board’s decision.

Thus, we are compelled to deny Salama’s petition for review.



                                          I.

      Salama is a native of Egypt who entered the United States

in 1978 on a nonimmigrant B-2 visa.                  In 1983, Salama’s status

was adjusted to that of Lawful Permanent Resident (“LPR”) based

on his marriage to a U.S. citizen.

      After obtaining LPR status, Salama was twice convicted on

federal   charges.        In   1991,      Salama    was    convicted       on   federal

counterfeiting charges, see 18 U.S.C. § 474(a), for which he was

sentenced to a prison term of 27 months.                     In 2003, Salama was

convicted in federal court for conspiracy to commit credit card

fraud, see 18 U.S.C. § 1029(b)(2) and (c)(1)(A)(i), for which he

was sentenced to five years of probation and required to pay

restitution.

      In 2004, the Department of Homeland Security (“DHS”) sought

to   remove     Salama   on    two   grounds       under    the     Immigration      and

Nationality      Act     (“INA”):         (1)   that,       based     on    his    1991

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counterfeiting          conviction,     Salama          had    been      convicted        of    an

aggravated    felony       after      having       been       admitted        to   the    United

States,     see      8    U.S.C.       § 1227(a)(2)(A)(iii)                and       8    U.S.C.

§ 1101(a)(43)(R);         and   (2)     that,       based      on    the      1991   and    2003

convictions, Salama had been convicted of two or more crimes of

moral turpitude after having been admitted to the United States,

see 8 U.S.C. § 1227(a)(2)(A)(ii).                       The immigration judge (“IJ”)

determined    that       both   offenses          qualified         as   crimes      of    moral

turpitude and that the 1991 conviction constituted an aggravated

felony as well.           In accordance with these conclusions, the IJ

adjudged Salama removable on both grounds charged by the DHS.

       To   escape       removal,     Salama       applied          to   have      his    status

adjusted, once again, to that of LPR under section 245(a) of the

INA.        See     8    U.S.C.       § 1255(a).              Salama       also      requested

cancellation       of    removal      under       INA    § 240A(a).            See   8    U.S.C.

1229b(a).         The IJ denied Salama’s request for relief on both

bases, and the Board of Immigration Appeals (“BIA”) affirmed.

In his Petition for Review to this court, Salama challenged both

determinations;          however,     at   oral         argument,        he    withdrew        his

challenge to the BIA’s denial of cancellation of removal under

section     240A(a)       of    the    INA.             Accordingly,          Salama’s         sole




                                              3
challenge      before     this     panel      concerns       the    BIA’s    denial      of     an

adjustment of Salama’s status. *



                                               II.

     In   order      to    adjust       his    temporary       status       to    that     of    a

permanent      resident,         an    alien     must       demonstrate,         among     other

things,       that   he    “is        admissible      to     the    United        States      for

permanent residence.”             8 U.S.C. § 1255(a).                In other words, an

alien must be admissible to the United States to be eligible for

an   adjustment       of     status.            Under       the     INA,     an    alien        is

inadmissible – and therefore ineligible for an adjustment of

status    –    if    he    has    been     “convicted         of”    or     “admits      having

committed . . . a crime involving moral turpitude.”                                 8 U.S.C.

§ 1182(a)(2)(A)(i)(I).                  Salama       does     not    dispute       the      IJ’s

conclusion that both underlying convictions qualify as crimes of

moral turpitude that potentially render him inadmissible under

INA § 1182(a)(2)(A)(i)(I) and therefore unable to satisfy the




     *
       Salama requested two additional forms of relief that are
not at issue in this court: withholding or deferral of removal
under the Convention Against Torture (“CAT”), and withholding of
removal under the INA, see 8 U.S.C. § 1231(b)(3)(A).      The IJ
denied Salama’s request for withholding of removal under the INA
but granted relief under the CAT.        The BIA affirmed both
conclusions.    In his petition for review, Salama does not
challenge the BIA’s denial of withholding of removal.



                                               4
admissibility      requirement          for    an    adjustment    of     status      under

§ 1255(a).

      Thus, Salama is down to his last resort –- asking for a

discretionary      waiver          of    inadmissibility.              See     8     U.S.C.

§ 1182(h)(1)(B).              The       INA    affords     the    Attorney          General

discretion   to    grant,          in   certain      circumstances,       a    waiver    of

inadmissibility based on hardship.                    Section 1182(h) permits the

Attorney General, “in his discretion, [to] waive the application

of subparagraph[] (A)(i)(I),” which classifies as inadmissible

any alien who has committed a crime of moral turpitude, for an

alien with a spouse, child or parent who is a citizen or LPR and

would suffer “extreme hardship” because of “the alien’s denial

of   admission.”         8    U.S.C.      § 1182(h)(1)(B).         Salama       sought    a

hardship waiver based on the negative effect his removal would

presumably have on his two daughters who are American citizens

residing in the United States.

      Although     an        inadmissibility           waiver     is    ultimately        a

discretionary      form       of    relief,         Congress    imposed       eligibility

limitations:      “No waiver shall be granted under this subsection

in the case of an alien who has previously been admitted to the

United   States     as       an    alien      lawfully    admitted      for    permanent

residence if . . . since the date of such admission the alien

has been convicted of an aggravated felony . . . .”                                8 U.S.C.

§ 1182(h) (emphasis added).                   Based on the foregoing language,

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the IJ concluded that Salama was barred from receiving a waiver

of inadmissibility.           The IJ ruled that when Salama adjusted his

status to that of a LPR in 1983, it was the equivalent of having

been   admitted    as    a    LPR   into      the    United   States    from   abroad.

Because Salama was convicted of a felony after 1983, the IJ

reasoned    that    § 1182(h)           precluded       him     from     receiving    a

discretionary hardship waiver of inadmissibility:

            Respondent adjusted his status to that of a legal
       permanent resident in 1983 based on his marriage to a
       United States citizen.    While Respondent argues that
       he was never admitted because he became a legal
       permanent resident through adjustment of status, this
       argument is erroneous. According to INA § 101(a)(20),
       “lawfully admitted for permanent residence” is defined
       as “the status of having been accorded the privilege
       of residing permanently in the United States as an
       immigrant in accordance with the immigration laws,
       such status not having changed.”     Respondent, having
       obtained the privilege of residing permanently in the
       United States, has been admitted to the United States.
       During pleadings, Respondent conceded . . . that he
       had been convicted of an aggravated felony after
       admission . . . . Respondent is therefore ineligible
       for adjustment of status and a waiver pursuant to
       [§ 1182(h)] because he is an alien previously admitted
       to the United States as an alien lawfully admitted for
       permanent residence who, since the date of such
       admission, has been convicted of an aggravated felony.

J.A. 143 (citations omitted).

       Although the BIA affirmed, it did so on expressly different

grounds, eschewing the IJ’s reasoning that equated the concepts

of   “admission”    as       an   LPR   and       “adjustment   of     status.”      See

generally Aremu v. Dep’t of Homeland Security, 450 F.3d 578, 581

(4th Cir. 2006) (explaining that an adjustment to status differs

                                              6
from an admission as an LPR because “such a change in status

can[not] be characterized as an ‘entry’ into the United States”)

(internal quotation marks omitted).         Instead, the BIA concluded

that because Salama was not seeking admission into the United

States, he was not eligible to seek a hardship waiver under

§ 1182(h), which is available only for an alien who can show

that the “denial of admission would result in extreme hardship”

to   the   alien’s   citizen-spouse   or   child.   8   U.S.C.   § 1182(h)

(emphasis added).      The BIA explained that

      a [hardship] waiver . . . can only be granted to an
      alien who establishes to the satisfaction of the
      Attorney General that a “denial of admission” will
      cause extreme hardship to a qualifying relative;
      [§ 1182(h)] does not by its terms give the Attorney
      General power to waive inadmissibility for an alien
      who can show only that a denial of adjustment of
      status will cause such hardship.    [Salama] is present
      in the United States and is applying for adjustment of
      status before an immigration judge; he does not seek
      “admission,” that is, “lawful entry into the United
      States after inspection and authorization” . . .
      within the meaning of [§ 1101(a)(13)(A)]. . . . [T]he
      fact that [Salama] does not seek (or stand in jeopardy
      of being denied) “admission,” as that term is defined
      by [§ 1101(a)(13)(A)], means that his application for
      a   waiver  of   inadmissibility  would   have  to   be
      pretermitted, albeit for reasons different from those
      relied upon by the Immigration Judge.

J.A. 35.


                                  III.

      In his petition for review to this court, Salama argues

that the statutory bar to a waiver of inadmissibility applies by


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its plain language only to aliens admitted from abroad into the

United States as LPRs, as opposed to those who, having arrived

and been admitted as non-immigrant visitors, adjusted to LPR

status.        See 8 U.S.C. § 1182(h) (“No waiver shall be granted

under this subsection in the case of an alien who has previously

been admitted to the United States as an alien lawfully admitted

for    permanent       residence        if    .        .    .    since     the    date    of     such

admission the alien has been convicted of an aggravated felony .

. . .”) (emphasis added).                    Salama’s argument is based on dual

bases:    (1)       that    the    waiver     bar          in    section    1182(h)      expressly

precludes only aggravated felons who were previously admitted

into the United States as LPRs; and (2) that the term “admitted”

into     the    United        States     is    wholly             distinct       from    “adjusted

status.”        According to Salama, the IJ misapplied the § 1182(h)

bar by “amalgamating” the concepts of “admission” as an LPR into

the    United        States       and   “adjustment              of    status.”          Brief     of

Petitioner at 15.                 Salama’s argument, therefore, is directed

entirely       at    the    decision     of        the      IJ    applying       the    aggravated

felony bar of § 1182(h) to render Salama ineligible to seek a

hardship waiver.

       The Attorney General contends that Salama failed in his

opening    brief       to    challenge        or       address        in   any   way     the   BIA’s

decision       and    thereby       waived     his          challenge       to    it.      We     are

constrained to agree.               Unlike the IJ, the BIA did not apply the

                                                   8
§ 1182(h) bar based on Salama’s aggravated felony; rather, the

BIA determined that Congress did not provide the hardship waiver

for an inadmissible alien seeking an adjustment of status.                           In

his opening brief, Salama simply failed to address the BIA’s

decision or its rationale.

       This court follows the “well settled rule that contentions

not raised in the argument section of the opening brief are

abandoned.”      See United States v. Al-Hamdi, 356 F.3d 564, 571

n.8    (4th   Cir.    2004);    see   also      Fed.     R.    App.   P.   28(a)(9)(A);

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.

1999).    We overlook this rule only in those rare circumstances

where we conclude, in our discretion, that the application of

the rule would result in “a miscarriage of justice.”                         A Helping

Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 369 (4th Cir.

2008) (internal quotation marks omitted).

       Salama    reads    the    decision           of   the    BIA   as   resting   on

alternative grounds – one being the rationale adopted by the IJ

that    Salama   is    ineligible     for       a   waiver     by   operation   of   the

aggravated felony bar in § 1182(h) and the other being the BIA’s

additional rationale that a waiver of inadmissibility is simply

unavailable to someone seeking an adjustment of status.                          Salama

acknowledges that only the former rationale was addressed in his

opening brief; his challenge to the latter rationale appears



                                            9
only in his reply brief.         Nevertheless, Salama contends that his

argument was sufficient to avoid waiver.

      We do not read the BIA’s denial of an adjustment of status

to rest on alternative grounds.               The BIA clearly did not embrace

the IJ’s analysis, explaining that Salama was not entitled to an

adjustment of status “for reasons different from those relied

upon by the Immigration Judge.”               J.A. 35.     But, even if the BIA

did rely on alternative bases, we fail to see how this aids

Salama.      As    he   acknowledges,      Salama    focused    solely        on   the

rationale of the IJ in his opening brief and failed to address

the BIA’s reasoning.           See Ngarurih v. Ashcroft, 371 F.3d 182,

188 (4th Cir. 2004) (explaining that where the BIA issues its

own decision rather than solely adopting the decision of the

immigration       judge,   the   court     of    appeals    reviews     the    BIA’s

decision).      The fact that he developed an argument in his reply

brief does not cure his failure to do so in the opening brief.

See Yousefi v. USINS, 260 F.3d 318, 326 (4th Cir. 2001) (per

curiam).

      Moreover, we decline to exercise our discretion to overlook

the    waiver     of    this   argument.         Salama     suggests    that       the

government would suffer no prejudice were we to consider the

argument in his reply brief, which may or may not be true, but

he    has   neither     explained   why       the   BIA’s    decision    was       not

discussed in his opening brief nor why our refusal to exercise

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our discretion will result in manifest injustice.       See Helping

Hand, 515 F.3d at 369 (refusing to overlook waiver where the

appellant “has not even explained why it failed to raise these

arguments   earlier,   let   alone   explained   why,   absent   our

consideration, a miscarriage of justice would result”).



                                        PETITION FOR REVIEW DENIED




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