                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        April 10, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    ADJEI EDM UND NTIRI,

              Petitioner,

     v.                                                   No. 06-9550
                                                       (No. A43 809 788)
    ALBERTO R. GONZALES, Attorney                     (Petition for Review)
    General, Attorney General,

              Respondent.



                             OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




          Adjei Edmund Ntiri, a native and citizen of Ghana, seeks review of the

Board of Immigration Appeals’s (BIA) denial of his application for a waiver of

deportability under former section 241(a)(1)(H) of the Immigration and

Nationality Act (INA). W e DISM ISS the petition in part and DENY it in part.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      M r. Ntiri’s father, then a legal permanent resident of the United States,

sought a relative visa for M r. Ntiri as his unmarried son. W hen M r. Ntiri

completed his visa application, he informed the United States government that he

was unmarried and he had no children even though he was married with three

children. 1 After he entered the United States, he sought to bring his family to this

country, and the Immigration and Naturalization Service (INS) determined that he

had misrepresented his familial status on his visa application. He was served with

an Order to Show Cause on October 31, 1996. After holding two hearings, an

immigration judge (IJ) ordered him deported.

      During the course of the immigration proceedings, M r. Ntiri divorced his

Ghanian wife and married a United States citizen. The BIA remanded his case to

allow him to seek a w aiver of deportability under former INA § 241(a)(1)(H),

formerly codified at 8 U.S.C. § 1251(a)(1)(H) (now INA § 237(a)(1)(H), codified

at 8 U.S.C. § 1227(a)(1)(H)). After holding another hearing, the IJ denied the

waiver of deportability. The BIA affirmed, and M r. Ntiri timely filed his petition

for review of the agency’s decision.



1
      M r. Ntiri previously argued that he was not legally married or legally
recognized as the father of his children at the time he applied for his visa because
he had not completed the various steps in his people’s customary marriage
process and had not had the marriage registered with the Ghanian government.
He has since conceded that his visa statements about his marriage and children
were incorrect, and we proceed under that concession.

                                          -2-
                                          II.

      W e must first analyze the scope of our review in this matter. M r. Ntiri

argues that the jurisdiction-stripping provisions of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110

Stat. 3009, and the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, do

not preclude us from considering his petition, because his is a transitional rules

case. The government responds that § 106(d) of the REAL ID Act requires us to

treat this case as if it had been filed under 8 U.S.C. § 1252, as amended by the

REAL ID Act, and thus the jurisdiction-stripping provisions do apply.

      M r. Ntiri’s deportation proceedings commenced on October 31, 1996,

before IIRIR A’s effective date. Consequently, until the enactment of the REA L

ID Act in M ay 2005, M r. Ntiri’s case would have been handled under pre-IIRIRA

law as amended by the transitional rules. See Belay-Gebru v. INS, 327 F.3d 998,

1000 n.3 (10th Cir. 2003). Section 106(d) of the REAL ID Act, however, states:

      TRANSITIONAL RULE CASES. – A petition for review filed under
      former section 106(a) of the Immigration and Nationality Act (as in
      effect before its repeal by section 306(b) of the Illegal Immigration
      Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252
      note)) shall be treated as if it had been filed as a petition for review
      under section 242 of the Immigration and Nationality Act (8 U.S.C.
      1252), as amended by this section.

119 Stat. 311. “Thus, under the REAL ID Act, transitional rules cases are now

subject to the jurisdictional rules currently codified in 8 U.S.C. § 1252.” Onikoyi

v. Gonzales, 454 F.3d 1, 3 (1st Cir. 2006); see also Elia v. Gonzales, 431 F.3d

                                         -3-
268, 272 (6th Cir. 2005), cert denied, 126 S. Ct. 2019 (2006). Consequently, w e

review M r. Ntiri’s claims using the current provisions of § 1252 rather than

IIRIRA’s transitional rules.

                                          III.

      M r. Ntiri challenges the BIA’s denial of his request for a waiver of

deportability under former INA § 241(a)(1)(H). He further argues that the BIA

denied him due process of law and abused its discretion when it (1) declined to

remand the matter to allow him to seek adjustment of status based on his marriage

to a United States citizen, and (2) neglected to address his request for a remand to

determine his eligibility for cancellation of removal. Because the BIA affirmed in

a short (but not summary) decision, we primarily review the BIA ’s decision. Sarr

v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). To the extent the BIA adopted

the IJ’s decision, however, we may look to the IJ’s decision as necessary for a

“more complete explanation” of the reasons underlying the BIA ’s decision. Id.

(quotation omitted).

                                          A.

      W hether to grant a waiver under former INA § 241(a)(1)(H) is a matter

explicitly committed to the discretion of the Attorney General. See 8 U.S.C.

§ 1251(a)(1)(H ) (1995); see also id. § 1227(a)(1)(H) (2006). Section 1252

generally precludes us from reviewing a “decision or action of the Attorney

General . . . the authority for which is specified under this subchapter to be in the

                                          -4-
discretion of the Attorney General.” Id. § 1252(a)(2)(B)(ii). Accordingly, if the

agency’s denial of a waiver of deportability is based on a discretionary

determ ination, as distinguished from a decision regarding statutory eligibility, w e

lack jurisdiction to review it. See Singh v. Gonzales, 451 F.3d 400, 410-11

(6th Cir. 2006); San Pedro v. Ashcroft, 395 F.3d 1156, 1157-58 (9th Cir. 2005).

      Contrary to M r. Ntiri’s arguments, it is apparent that the agency denied him

a waiver as a matter of discretion, not because it found him statutorily ineligible.

Admin. R. at 2 (“W e agree with the Immigration Judge’s conclusion that the

respondent does not merit a w aiver in the exercise of discretion.”). Thus, with

one exception, we lack jurisdiction to review the agency’s denial of the waiver.

8 U.S.C. § 1252(a)(2)(B)(ii); Singh, 451 F.3d at 411; San Pedro, 395 F.3d at

1157-58. The exception is that we retain jurisdiction to review “constitutional

claims or questions of law .” 8 U.S.C. § 1252(a)(2)(D). M ost of M r. Ntiri’s

arguments concerning the agency’s denial of the waiver do not invoke any such

questions; rather, because they primarily focus on the agency’s weighing of the

evidence, they are the type of “challenges directed solely at the agency’s

discretionary and factual determinations [that] remain outside the scope of

judicial review.” Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006). To

the extent that he implicitly invokes a constitutional due process claim by arguing

that the IJ’s factual findings were insufficient for review by the BIA, we find no

merit in his contentions. The IJ’s findings were adequate to allow review of the

                                          -5-
decision. Accordingly, with regard to this argument the petition is dismissed in

part and denied in part.

                                          B.

      M r. Ntiri further argues that the BIA abused its discretion when it denied

his motion for a remand to allow him to seek adjustment of status based on his

marriage to a United States citizen. He contends that he satisfied all of the

requirements for a remand set forth in the BIA’s decision in In re

Valarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and consequently the B IA’s

failure to follow its own precedent and remand the case denied him due process.

      The BIA treats a motion to remand essentially the same as a motion to

reopen. In re L-V-K, 22 I. & N. Dec. 976, 978 (BIA 1999). W e have jurisdiction

to review the denial of a motion to reopen, at least where judicial review of the

underlying order is not precluded. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62

(10th Cir. 2004). Our review is for abuse of discretion, which occurs when “[the

BIA’s] decision provides no rational explanation, inexplicably departs from

established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Id. at 1362 (quotation omitted). 2




2
       The BIA characterized its denial of the remand motion as a matter of
discretion. Admin. R. at 3. Its explanation, however, indicates that it found that
M r. Ntiri had not met the requirements of Valarde-Pacheco. Id. Consequently,
we approach this issue as a denial for lack of eligibility rather than a denial in the
exercise of discretion.

                                          -6-
      To qualify for adjustment of status, “an alien must apply for adjustment,

establish that he is eligible to receive an immigrant visa and is admissible to the

United States for permanent residence, and show that an immigrant visa is

immediately available to him at the time his application is filed.” M atter of

Arthur, 20 I. & N. Dec. 475, 476 (BIA 1992). Valarde-Pacheco, however,

establishes an exception to this general rule. If Valarde-Pacheco’s five

conditions are met, a motion to reopen to pursue an adjustment may be granted

even if a visa is not immediately available to an alien:

      W e conclude that a properly filed motion to reopen may be granted,
      in the exercise of discretion, to provide an alien an opportunity to
      pursue an application for adjustment where the following factors are
      present: (1) the motion is timely filed; (2) the motion is not
      numerically barred by the regulations; (3) the motion is not barred by
      M atter of Shaar, 21 I& N Dec. 541 (BIA 1996), or on any other
      procedural grounds; (4) the motion presents clear and convincing
      evidence indicating a strong likelihood that the respondent’s
      marriage is bona fide; and (5) the Service either does not oppose the
      motion or bases its opposition solely on M atter of Arthur.

Valarde-Pacheco, 23 I. & N. Dec. at 256.

      The BIA explained why it denied M r. Ntiri’s motion. Contrary to

M r. Ntiri’s argument before this court, he failed to show all five Valarde-Pacheco

factors. A dmin. R. at 3. Particularly, the Department of Homeland Security

opposed the remand on a ground other than M atter of Arthur. Id. Consequently,

Valarde-Pacheco did not authorize a remand of the case, and the BIA did not fail

to follow its precedent in denying the requested remand. It follows that the BIA



                                          -7-
did not abuse its discretion in denying the motion and there is no ground for a due

process argument. W ith regard to this argument, the petition is denied.

                                           C.

      Finally, M r. Ntiri contends that the BIA abused its discretion and denied

him due process when it failed to address his request for a remand for the IJ to

consider his application for cancellation of removal. It appears that he challenges

not the BIA ’s failure to remand, but its failure even to rule on his request.

      The record does not show that M r. Ntiri ever made the BIA aware of its

failing or otherwise presented this argument to the BIA. Consequently, he has not

exhausted his administrative remedies, and we do not have jurisdiction to

consider the argument. See Galvez Pineda v. Gonzales, 427 F.3d 833, 837

(10th Cir. 2005) (observing that a “[f]ailure to exhaust administrative remedies by

not first presenting a claim to the BIA deprives this court of jurisdiction to hear

it”). 3 W ith regard to this argument, the petition is dismissed.

3
       Even if M r. Ntiri had presented this argument to the BIA, we would not
find a violation of due process. To proceed with a due process claim, M r. Ntiri
must show he suffered prejudice as a result of the BIA’s failure to address his
request. See Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162-63 (10th Cir.
2003). M r. Ntiri suffered no prejudice from the BIA’s lack of discussion because
he is not eligible for cancellation of removal. He was placed in removal
proceedings only two years after he entered the United States, so as a matter of
law he could not accrue the required number of years of physical presence in the
United States to become eligible for that relief. See 8 U.S.C. §§ 1229b(a)(2)
(requiring seven years’ presence), 1229b(b)(1)(A) (requiring ten years’ presence),
1229b(d)(1) (providing that a period of continuous presence ends w hen an alien is
served a notice to appear); Sibanda v. INS, 282 F.3d 1330, 1334-35 (10th Cir.
                                                                      (continued...)

                                          -8-
                                       IV.

      The petition for review is D ISM ISSED in part and DENIED in part.



                                                  Entered for the Court


                                                  M ichael R. M urphy
                                                  Circuit Judge




3
 (...continued)
2002) (concluding that IIRIRA’s “stop-time” provision applies even to
pre-IIRIRA cases).

                                       -9-
