Nastase v. Barr, No. 18-60264 (5th Cir. 2020)
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Petitioner sought review of the BIA's decision denying his applications for adjustment of immigration status and for a waiver of inadmissibility. Regardless of whether or not the Fifth Circuit applied Chevron deference, the disposition of this case would be the same. The court held that petitioner failed to meet the requirements for derivative citizenship because he admitted in the immigration proceedings that he was only conditionally, not permanently, admitted as a refugee. The court rejected petitioner's claims to the contrary and denied the first petition for review.
To the extent that petitioner makes a reviewable challenge to the denial of the waiver of inadmissibility, the court held that it lacks merit. In this case, the BIA did not apply a heightened standard to petitioner and his argument that the BIA should have weighed the equities more in his favor does not establish that the BIA applied a heightened standard to his waiver application and thereby acted ultra vires. To the extent the petition presents the issue of whether the BIA should have weighed the equities of his case more favorably to petitioner, the court is without jurisdiction to consider it. Whether or not the BIA considered each of the facts petitioner alleged, the court is without jurisdiction to review its discretionary decision. Accordingly, as to the second petition, the court denied in part and dismissed in part for lack of jurisdiction.
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