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Diaz-Covarrubias v. Mukasey

January 9, 2009

SARA DIAZ-COVARRUBIAS, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A029-252-915.

The opinion of the court was delivered by: Ikuta, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 24, 2008 -- Pasadena, California

Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges, and Milton I. Shadur,*fn1 District Judge.

OPINION

Sara Diaz-Covarrubias petitions for review of the BIA's refusal to "administratively close" her case. We hold that we lack jurisdiction to do so, and accordingly dismiss her petition for review.

I.

Sara Diaz-Covarrubias ("Diaz") is a thirty-five year-old native and citizen of Mexico who attempted to enter the United States without inspection in 1990. She was apprehended at the border but then released into the United States. Ten years later, on October 6, 2000, the INS sent Diaz a Notice to Appear, alleging that she was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien not lawfully admitted or paroled into the United States.

Diaz conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b based on hardship to her minor daughter (a citizen) and her father (a lawful permanent resident). The immigration judge (IJ) denied Diaz's application for cancellation of removal on September 30, 2004, holding that Diaz had not established that her removal would cause "exceptional and extremely unusual hardship" to her daughter or her father. The IJ granted her application for voluntary departure and issued a conditional order of removal in the event that she failed to voluntarily depart. Diaz then filed a Notice of Appeal with the Board of Immigration Appeals (BIA), challenging the IJ's hardship determination.

Before Diaz's appeal brief was due, the United States Citizenship and Immigration Services (USCIS) approved a petition for alien relative (or "Form I-130 petition") that Diaz's sister, a United States citizen, had filed five years earlier for Diaz's benefit. The Immigration and Nationality Act (INA) allows an immediate relative of a United States citizen to be issued an immigrant visa or otherwise acquire the status of lawful permanent resident. 8 U.S.C. § 1151(a), (b)(2)(A)(i). For an alien to qualify as an immediate relative, a United States citizen must file a Form I-130 petition on the alien's behalf, and the petition must be approved by the USCIS. 8 C.F.R. § 204.1(a); see also Diouf v. Mukasey, 542 F.3d 1222, 1225 n.1 (9th Cir. 2008). The USCIS's approval of a Form I-130 petition, however, does not make an alien automatically eligible for adjustment of status under 8 U.S.C. § 1255(i). Among other requirements, an immigrant visa must be "immediately available." 8 U.S.C. § 1255(i)(2)(B); see also Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir. 2005). The wait time for these immigrant visas is considerable: Diaz estimates that a visa will not be available for her until 2013.

In addition to challenging the IJ's denial of her application for cancellation of removal, Diaz asked the BIA for administrative closure of her case until an immigrant visa became available. "Administrative closure" is a procedure by which an IJ or the BIA removes a case from its docket as a matter of "administrative convenience." In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996) (quoting In re Amico, 19 I. & N. Dec. 652, 654 n. 1 (BIA 1988)). This procedure is not described in the INA or federal regulations, but the BIA has stated that it will not administratively close a case if closure is opposed by either of the parties. Id. The record does not indicate that the Department of Homeland Security either opposed or agreed to Diaz's request for administrative closure.

On December 27, 2005, the BIA adopted the IJ's decision in its entirety. The BIA also denied Diaz's request for administrative closure on the ground that "her eventual adjustment of status is still speculative at this time," because she ...


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