     Case: 13-60192      Document: 00512562755         Page: 1    Date Filed: 03/17/2014




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

                                                                                FILED
                                    No. 13-60192                          March 17, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
FREDY CORZO-RODRIGUEZ,

                                                 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. A075 276 611


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Petitioner, a native and citizen of Mexico, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) addressing three distinct
matters.    First, the BIA dismissed Petitioner’s appeal of an order by an
Immigration Judge (“IJ”) denying Petitioner’s application for adjustment of
immigration status. As explained in its decision, the BIA rejected Petitioner’s
contention that he is eligible for adjustment to permanent resident status as a




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                         No. 13-60192
“grandfathered alien” under 8 U.S.C. §1255(i)(1)(B)(i). 1                    Second, the BIA
upheld the IJ’s denial of Petitioner’s motion to terminate removal proceedings
after rejecting Petitioner’s contention that he had already been granted
permanent resident status by the United States Citizenship and Immigration
Services (“USCIS”). Finally, the BIA denied Petitioner’s motion to remand
proceedings to the IJ based on the insufficiency of Petitioner’s new evidence of
eligibility for adjustment of immigration status. 2 For the reasons set forth
below, we affirm the BIA’s decision.
                                                 I.
       Giving “considerable deference to the BIA’s interpretation of the
legislative scheme it is entrusted to administer,” we generally review an
immigration court’s legal conclusions de novo and factual findings for
substantial evidence. 3 However, under a “jurisdiction stripping provision”
codified at 8 U.S.C. § 1252(a)(2)(B), no court may review certain discretionary
decisions reached by immigration officials or the findings of fact made in
support of those discretionary decisions. 4 In particular, this rule applies to the
BIA’s discretionary decisions regarding adjustment of immigration status
under 8 U.S.C. § 1255 and cancellation of removal under 8 U.S.C. § 1229b. 5 At


       1 See Bolvito v. Mukasey, 527 F.3d 428, 436 (5th Cir. 2008) (“A ‘grandfathered alien’ is
defined as ‘an alien who is the beneficiary . . . of a petition for classification under section 204
of the Act which was properly filed with the Attorney General on or before April 30, 2001,
and which was approvable when filed.’” (quoting 8 C.F.R. § 245.10(a)(1)(i))).
       2 Although the motion was styled as a motion to reopen proceedings, the BIA construed

the motion to be a motion to remand under 8 C.F.R. § 1003.2(c)(4) because Petitioner’s
original appeal was still pending.
       3 Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007); see also Wang v. Holder, 569 F.3d

531, 536 (5th Cir. 2009).
       4 See Ayanbadejo v. Chertoff, 517 F.3d 273, 276-77 n.9 & n.11 (5th Cir. 2008)

(analyzing Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005), and concluding that a
“predicate determination” that addresses “a question of fact . . . does not qualify for the §
1252(a)(2)(D) exception to the § 1252(a)(2)(B) jurisdiction stripping provision”).
       5 See Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); Hadwani v. Gonzales, 445

F.3d 798, 800 (5th Cir. 2006).
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the same time, under an exception to the jurisdiction stripping provision
codified at 8 U.S.C. § 1252(a)(2)(D), the circuit courts retain authority to
consider de novo any “constitutional claims or questions of law” raised in a
petition for review of the BIA’s discretionary decisions. 6
                                             II.
       An alien who entered the United States without inspection may seek
adjustment of immigration status under 8 U.S.C. § 1255(i) if he is a
“grandfathered alien” or, in other words, the beneficiary of a visa petition filed
before April 30, 2001. 7 For an alien to avail himself of this provision, however,
8 C.F.R. § 245.10(a)(1)(i) requires that the visa petition must have been
“approvable when filed.” 8 Where the visa petition is based on the relationship
of marriage, the BIA has previously held that the alien must show that the
marriage was bona fide at its inception. 9 This interpretation of the governing
statute and applicable regulation has been upheld by several circuit courts. 10
       Petitioner argues that he is a grandfathered alien because his alleged
former spouse, Noelia Martinez (“Martinez”), filed a Petition for Alien Relative
on Petitioner’s behalf in 1996. However, the BIA held that Martinez’s petition,
which was deemed abandoned in 2003, 11 does not support adjustment of
Petitioner’s present immigration status because Martinez’s petition was not
approvable when filed. In the BIA’s view, the items of evidence submitted—
both in connection with Martinez’s original petition and during the different


       6 See Ayanbadejo, 517 F.3d at 276-77 n.9 & n.11; Sung, 505 F.3d at 377.
       7 See 8 U.S.C. § 1255(i)(1)(B)(i) and § 1154(a)(1)(A)(i); Bolvito, 527 F.3d at 436.
       8 Bolvito, 527 F.3d at 436.
       9 In re Riero, 24 I. & N. Dec. 267, 268-69 (BIA 2007).
       10 Linares Huarcaya v. Mukasey, 550 F.3d 224, 228-30 (2d Cir. 2008) (per curiam);

Echevarria v. Keisler, 505 F.3d 16, 19-20 (1st Cir. 2007); see also Xue Rong Zheng v. Holder,
315 F. App’x 570, 575 (6th Cir. 2009).
       11 As the BIA explained, Martinez failed to respond to a request for evidence issued by

the USCIS in 2001. Martinez’s petition on Petitioner’s behalf was therefore deemed
abandoned in 2003.
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                                  No. 13-60192
stages of Petitioner’s present removal proceedings—have collectively failed to
establish the existence of a marriage that was bona fide at its inception. As we
held in Ayanbadejo v. Chertoff, 517 F.3d 273, 277 n.11 (5th Cir. 2008), the
“determination of whether the [alien] had a bona fide marriage [i]s a question
of fact, not law.” Accordingly, to the extent that Petitioner presently challenges
the BIA’s determination that he failed to demonstrate a bona fide marriage,
we lack jurisdiction to consider Petitioner’s challenge under the jurisdiction
stripping provision codified at 8 U.S.C. § 1252(a)(2)(B)(i).
      In this context, Petitioner also raises one argument that involves a
question of law over which our jurisdiction is preserved by 8 U.S.C. §
1252(a)(2)(D). According to Petitioner, an internal memorandum issued in
1997 by the Acting Executive Associate Commissioner of the Immigration and
Naturalization Service suggested that “the mere filing of a visa petition could
protect a beneficiary’s eligibility to file for adjustment of status pursuant to [8
U.S.C. § 1255(i)].”
      As the BIA correctly observed, however, Petitioner’s reliance on this
internal memorandum is misplaced. This internal memorandum only notified
immigration officials of the possibility that Congress might subsequently
“provide a grandfather clause for . . . alien beneficiaries” in the future, and
instructed immigration officials regarding the procedures to follow in
anticipation of such a provision’s enactment. But the memorandum did not
purport to interpret the language of that statutory provision, which did not yet
exist. Nor did the memorandum, which was issued long before the current
version of 8 C.F.R. § 245.10(a)(1)(i), purport in any way to disavow that
regulation’s “approvable when filed” requirement or the BIA’s interpretation
that a predicate marriage must have been bona fide at its inception.
      In any event, because the BIA’s interpretation of the current version of
8 C.F.R. § 245.10(a)(1)(i) is certainly not a “plainly erroneous” interpretation
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                                       No. 13-60192
of that administrative regulation, the BIA’s interpretation is entitled to our
deference under Auer v. Robbins, 519 U.S. 452, 461 (1997). 12 Giving the
requisite “deference to the BIA’s interpretation of the legislative scheme it is
entrusted to administer,” 13 we therefore deny review of the BIA’s decision
regarding Petitioner’s application for adjustment of immigration status.
                                             III.
       Petitioner also argues that the BIA erred in upholding the IJ’s denial of
his motion to terminate removal proceedings under 8 U.S.C. § 1229b because
he had already been granted permanent resident status.                         As evidence,
Petitioner cites an undated and partially completed I-94 notice, which
Petitioner obtained from the records of the USCIS pursuant to a request under
the Freedom of Information Act. The BIA concluded, however, that the USCIS
never issued this I-94 notice.           According to the BIA, this document was
partially completed in the course of considering Martinez’s 1996 petition for a
visa on Petitioner’s behalf. After reviewing other USCIS documentation dated
2003 and 2006, the BIA concluded that Martinez’s 1996 petition had ultimately
been deemed abandoned. The BIA therefore upheld the IJ’s decision to deny
the motion to terminate removal proceedings.
       Like the BIA’s decisions regarding immigration status adjustment under
8 U.S.C. § 1255, the cancellation of removal under 8 U.S.C. § 1229b is also a
discretionary decision that is explicitly subject to the jurisdiction stripping
provision codified at 8 U.S.C. § 1252(a)(2)(B)(i). 14 The BIA’s conclusion that



       12 See Belt v. EmCare, Inc., 444 F.3d 403, 408 (5th Cir. 2006); see also Linares
Huarcaya, 550 F.3d at 229-30 (finding that Auer deference applies to the BIA’s interpretation
of “immigration regulations”).
       13 Zhu, 493 F.3d at 594.
       14 Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003) (concluding that on “direct

review, the plain language of § 1252(a)(2)(B) would divest us of jurisdiction to review the IJ’s
denial of § 1229b(b)(1) cancellation”).
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                                        No. 13-60192
the USCIS never issued the partially completed I-94 notice is a finding of fact,
over which we lack jurisdiction.
      Additionally, to the extent that the BIA’s decision in the present case
relied on a conclusion of law regarding the legal effect of an unissued I-94
notice, we uphold the BIA’s decision on de novo review under 8 U.S.C. §
1252(a)(2)(D).       Petitioner identifies no legal authority that would render
Petitioner “an alien lawfully admitted for permanent residence” under 8 U.S.C.
§ 1229b based on the existence of an I-94 notice that was never issued. We
therefore deny review of the BIA’s decision regarding the termination of
removal proceedings.
                                              IV.
      Finally, in his arguments regarding the bona fides of his marriage to
Martinez, Petitioner refers to items of evidence that were submitted to the BIA
in his motion to reopen. Construing this submission as a motion to remand
under 8 C.F.R. § 1003.2(c)(4), the BIA denied Petitioner’s motion after finding
that the evidence he had submitted was insufficient to warrant a remand. In
the present appeal, however, Petitioner has briefed no argument regarding the
correctness of the BIA’s ruling on this motion. We therefore conclude that
Petitioner has abandoned this issue. 15
                                               V.
      For the reasons set forth above, we consider that none of Petitioner’s
arguments in this appeal have merit. We therefore DENY Petitioner’s petition
for review of the BIA’s decision.
      DENIED.




      15   See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
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