     Case: 09-60808 Document: 00511471810 Page: 1 Date Filed: 05/10/2011




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

                                                 FILED
                                                                            May 10, 2011
                                     No. 09-60808
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CAMILO VALENCIA,

                                                   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 075 295


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Camilo Valencia, a native and citizen of Columbia, petitions for review of
the decision of the Board of Immigration Appeals (BIA) denying his motion to
reopen his removal proceedings. To the extent that Valencia challenges the
underlying BIA removal order, this court lacks jurisdiction to review that
decision. See 8 U.S.C. § 1252(a)(5), (b)(1), (b)(6);Stone v. INS, 514 U.S. 386,
394-95 (1995) (citing 8 U.S.C. § 1105a(a)(6) (1988 Supp. V) (recodified as
amended at 8 U.S.C. § 1252(b)(6))). To the extent that Valencia seeks an order

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60808 Document: 00511471810 Page: 2 Date Filed: 05/10/2011

                                  No. 09-60808

from this court to reopen his proceedings based on Padilla v. Kentucky, 130
S. Ct. 1473 (2010), this court lacks jurisdiction over that claim as well as
Valencia did not fairly present such a claim to the BIA, raising it for the first
time in his brief before this court. See 8 U.S.C. § 1252(d)(1); Omari v. Holder,
562 F.3d 314, 317-19 (5th Cir. 2009).
      Valencia’s challenge to the denial of his motion to reopen is unavailing. He
argues that he had presented a “new argument” on an issue that the
immigration judge (IJ) had pretermitted, Valencia’s eligibility for cancellation
of removal or adjustment of status. See Immigration and Naturalization Act
(INA) § 245, 8 U.S.C. § 1255; INA § 240A(b), 8 U.S.C. § 1229b(b). However, he
relies on Padilla, 130 S.Ct. 1473, in support of his argument. Padilla was issued
after Valencia filed his motion to reopen with the BIA and thus could not have
formed the basis for the motion. Moreover, to the extent that he is asserting
that the IJ and BIA should have considered, in spite of Valencia’s
inadmissibility, the availability of cancellation of removal, he presents no new
facts establishing prima facie eligibility for adjustment of status or cancellation
of removal. See 8 C.F.R. § 1003.2(c); INS v. Abudu, 485 U.S. 94, 104 (1988).
Valencia has failed to show that the BIA abused its discretion in denying his
motion to reopen. See Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir.
2006).
      The petition for review is DISMISSED IN PART and DENIED IN PART.




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