         12-3726 (L)
         Daikoku v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A079 713 216


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1             At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 28th
 4       29th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                 DENNIS JACOBS,
 8                 GUIDO CALABRESI,
 9                 DEBRA ANN LIVINGSTON,
10                      Circuit Judges.
11       _______________________________________
12
13       ALEX R. DAIKOKU,
14                 Petitioner,
15
16                           v.                            12-3726 (L),
17                                                         13-1347 (Con)
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                 Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Reuben S. Kerben (Lawrence S. Kerben, on the
24                                     brief), New York, New York.
25
26       FOR RESPONDENT:               Julia J. Tyler, Trial Attorney, Office of
27                                     Immigration Litigation; Stuart F. Delery,
28                                     Assistant Attorney General; Shelley R. Goad,
29                                     Assistant Director, U.S. Department of
30                                     Justice, Washington D.C.
     1        UPON DUE CONSIDERATION of these petitions for review of two

     2   Board of Immigration Appeals (“BIA”) decisions, it is hereby

     3   ORDERED, ADJUDGED, AND DECREED that the petition for review in

     4   12-3726 (L) is DISMISSED, and the petition for review in 13-

     5   1347 (Con) is DENIED.

 6            Petitioner Alex R. Daikoku, a native and citizen of Panama,

 7       seeks review of: (1) an August 23, 2012, decision of the BIA

 8       affirming the January 20, 2011, decision of Immigration Judge

 9       (“IJ”) Barbara A. Nelson, denying him special rule cancellation

10       of removal under 8 U.S.C. § 1229b(b)(2), In re Alex R. Daikoku,

11       No. A079 713 216 (B.I.A. Aug. 23, 2012), aff’g No. A079 713 216

12       (Immig. Ct. N.Y. City Jan. 20, 2011); and (2) a March 12, 2013,

13       decision of the BIA denying his motion to reopen.   In re Alex R.

14       Daikoku, No. A079 713 216 (B.I.A. Mar. 12, 2013).   We assume the

15       parties’ familiarity with the underlying facts and procedural

16       history in this case.

17            Daikoku’s petition from the agency’s final order of removal

18       (12-3726 (L)) does not challenge the agency’s denial of his

19       application for special rule cancellation of removal.   The

20       argument is that United States Citizenship and Immigration

21       Services (“USCIS”) intentionally delayed adjudication of his

22       wife’s visa petition, the IJ failed to correct that delay, and as

23       a result, he was deprived of a due process right to apply for

24       adjustment of status.   We are without jurisdiction to consider

25       Daikoku’s claim in this petition because it was not exhausted on



                                         2
 1   appeal to the BIA.   See 8 U.S.C. § 1252 (b)(4)(A), (d)(1); see

 2   also James v. Mukasey, 522 F.3d 250, 258-59 (2d Cir. 2008).

 3        Daikoku’s petition for review of the BIA’s denial of his

 4   motion to reopen (13-1347 (Con)) raises no challenge to the BIA’s

 5   dispositive bases for denying his motion: untimeliness and the

 6   absence of new evidence.    See Yueqing Zhang v. Gonzales, 426 F.3d

 7   540, 541 n.1 (2d Cir. 2005).   Those findings were not in error.

 8   See 8 U.S.C. § 1229a(c)(7)(B), (C)(i).

 9        We need not consider the BIA’s alternative ruling that

10   Daikoku failed to demonstrate his prima facie eligibility to

11   adjust status under 8 U.S.C. § 1255(i).    See INS v. Abudu, 485

12   U.S. 94, 104-05 (1988).    Daikoku cannot demonstrate the requisite

13   prejudice because USCIS has denied his wife’s visa petition,

14   rendering him ineligible to adjust status.    See 8 U.S.C.

15   § 1255(i)(1), (2); see also Garcia-Villeda v. Mukasey, 531 F.3d

16   141, 149 (2d Cir. 2008).

17        For the foregoing reasons, the petition for review in

18   12-3726 (L) is DISMISSED and the petition for review in 13-

19   1347 (Con) is DENIED.

20                                   FOR THE COURT:
21                                   Catherine O’Hagan Wolfe, Clerk
22




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