                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                             April 4, 2007
                                   TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 MARTIN RINCON RIVAS and MARIA
 CASTRO DE RINCON,

           Petitioners,
 v.                                                           No. 06-9545
 ALBERTO R. GONZALES, Attorney                                (Agency Nos.
 General,                                             A78-891-449, A78-891-450)
                                                 (Petition for Review from an Order of
           Respondent.                            The Board of Immigration Appeals)




                              ORDER AND JUDGMENT *


Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

       Martin Rincon Rivas (Rincon) and Maria Castro De Rincon (Castro) petition for



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
review of an order removing them from the United States to Mexico. Castro contends

that the immigration judge (IJ) erred in allowing the Attorney General to withdraw a

charge filed against her for false representation. Further, Rincon and Castro jointly

contend that the IJ should have granted their request to continue the removal proceedings

because Rincon had filed a labor certification request that could result in an employment-

based visa. We exercise jurisdiction under 8 U.S.C. § 1252(a) and dismiss the petition for

lack of jurisdiction.

                                              I.

       Rincon and Castro, a married couple, are citizens of Mexico who entered the

United States illegally in early 1997. The Attorney General initiated removal proceedings

against them in 2004. In addition to charging both with unauthorized entry, the Attorney

General alleged that Castro had also falsely represented herself to be a United States

citizen. Over Castro’s objection, the IJ subsequently allowed the Attorney General to

withdraw the false representation charge before the IJ had made any findings regarding

the charge.

       Before the IJ ruled on removal, Rincon and Castro’s counsel requested a

continuance to await a decision by the United States Department of Labor on Rincon’s

pending application for alien employment certification. The petitioners asserted that the

certification would allow Rincon to request an employment-based visa. The IJ denied

their request because it was unknown how long the certification process would take and

the likelihood of certification was speculative at best.

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       The IJ thereafter ordered the removal of Rincon and Castro from the United States

because they had not provided evidence showing their lawful entry. The IJ specifically

noted that he had made “no finding” on the withdrawn false representation charge. Aplt.

App. at 39. The Board of Immigration Appeals (BIA) affirmed, without opinion, the IJ’s

rulings. Rincon and Castro now petition for review of the BIA’s decision.

                                            II.

       When the BIA “‘summarily affirms or adopts an immigration judge’s decision, this

court reviews the judge’s analysis as if it were the BIA’s.’” Wiransane v. Ashcroft, 366

F.3d 889, 897 (10th Cir. 2004) (citation omitted). We examine legal determinations de

novo and findings of fact under a substantial evidence standard. Niang v. Gonzales, 422

F.3d 1187, 1196 (10th Cir. 2005). Further, we review jurisdictional issues de novo.

Itaeva v. INS, 314 F.3d 1238, 1240 (10th Cir. 2003). Rincon and Castro argue that the IJ

erred in two regards: when he allowed the Attorney General to withdraw the false

representation charge, and when he denied their request for a continuance.

                                            A.

       Castro contends that the withdrawal of the false representation charge prevented

her from refuting it, thereby preserving the allegation as “forevermore unchallengeable in

any court or agency.” Pet’r Br. at 21. Castro argues that she will be unable to return to

the United States so long as this allegation remains unadjudicated.

       We are without jurisdiction to consider Castro’s argument. Title 8 U.S.C. §

1252(g) deprives us of jurisdiction to review the Attorney General’s decision to

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commence or adjudicate removal proceedings:

       Except as provided in this section and notwithstanding any other provision of
       law (statutory or nonstatutory), including section 2241 of title 28, United
       States Code, or any other habeas corpus provision, and sections 1361 and 1651
       of such title, no court shall have jurisdiction to hear any cause or claim by or
       on behalf of any alien arising from the decision or action by the Attorney
       General to commence proceedings, adjudicate cases, or execute removal
       orders against any alien under this Act.

(emphasis added). The three enumerated acts – commencing proceedings, adjudicating

cases, and executing removal orders – “represent the initiation or prosecution of various

stages in the deportation process.” Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471, 483 (1999), reh’g denied by, 526 U.S. 1081 (1999). “Section 1252(g) was

directed against a particular evil: attempts to impose judicial constraints upon

prosecutorial discretion.” Id. at 485 n.9. The provision confirms that “[a]t each stage the

Executive has discretion to abandon the endeavor” without judicial interference. Id. at

483-84; see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120 (9th Cir. 2001) (“It is

this very decision to either ‘abandon the endeavor’ or to adjudicate it that Congress

wished to preserve from judicial review.”).

       Castro’s claim clearly falls within subsection (g)’s prohibition on judicial review

of the Attorney General’s decision to commence or adjudicate an immigration case. By

challenging the Attorney General’s decision to abandon the false representation charge,

Castro is asking us to review the Attorney General’s prosecutorial decision regarding

what charges will or will not be pursued against her. Subsection (g) prohibits us from

engaging in precisely this type of review because by raising this issue Castro is

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attempting to impose judicial constraints on the Attorney General’s discretion to choose

which charges will be pursued.1 The Attorney General’s decision to “abandon the

endeavor” regarding the false representation charge is beyond our jurisdictional purview.

                                             B.

       The petitioners also assert that the IJ erred in denying their request for a

continuance of the proceedings pending the outcome of Rincon’s labor certification

request.2 Again, we must first address whether we have jurisdiction to review the denial

of a request for a continuance. We have previously held that “8 U.S.C. §

1252(a)(2)(B)(ii) bars review of [an] IJ’s discretionary decision denying [a] petitioner’s

motion for a continuance.” Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004).

Our prior ruling in Yerkovich is controlling here. Title 8 U.S.C. § 1252(a)(2)(B)(ii) bars

our review of the IJ’s decision to deny a continuance.

       After we decided Yerkovich, Congress passed the REAL ID Act of 2005. Section

1252 was amended to provide that 8 U.S.C. § 1252(a)(2)(B) shall not “be construed as

precluding review of constitutional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in accordance with this section.” See 8


       1
        Castro cites to Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), to support her
contention that the withdrawal of charges without a hearing violates due process. As the
Attorney General points out, however, that case involved an asylum applicant’s right to
have his claims heard by an immigration judge, not the right of a removable alien to have
a hearing on withdrawn claims. See id. at 968-71.
       2
         Although the petitioners mention, at various points, other petitions that may
justify adjustment of status, the basis for their request for a continuance was the pending
application for certification. See A.R. at 67.

                                              -5-
U.S.C. § 1252(a)(2)(D). We have interpreted this provision as granting courts jurisdiction

to review constitutional claims and “‘a narrow category of issues regarding statutory

construction.’” Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quoting Chen

v. United States DOJ, 434 F.3d 144, 153 (2d Cir. 2006)). “However, challenges directed

solely at the agency’s discretionary and factual determinations remain outside the scope

of judicial review.” Id. at 1281 (citation omitted). The petitioners do not raise any

constitutional claim or question regarding statutory interpretation, relying instead on their

argument that it was an abuse of the IJ’s discretion to deny their motion. See Pet’r Br. at

26-28.

                                             III.

         We DISMISS the petition for review for lack of jurisdiction.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




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