                                                                           FILED
                           NOT FOR PUBLICATION                              APR 07 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAMON RAMOS-JIMENEZ, a.k.a. Fidel                No. 08-70444
Ramos Jimenez,
                                                 Agency No. A070-210-980
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 3, 2010
                              Pasadena, California

Before: GOULD, IKUTA, and N.R. SMITH, Circuit Judges.

       Ramon Ramos-Jimenez, a native and citizen of Mexico, petitions for review

of the decision by the Board of Immigration Appeals (BIA) denying his motion to

reconsider the denial of his motion to reopen.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The BIA did not err in construing the motion to reconsider, in part, as

a motion to reopen, as Petitioner submitted new evidence in support of his motion.

Therefore, the BIA did not err in finding that the motion, to the extent that it was a

motion to reopen, was numerically barred. See 8 C.F.R. § 1003.2(c)(2).




      2.     We do not lack jurisdiction over Ramos’s claim that the BIA abused

its discretion in denying the motion to reconsider, because the BIA addressed the

issue of prima facie eligibility. See Abebe v. Gonzales, 432 F.3d 1037, 1040-41

(9th Cir. 2005) (en banc). The BIA held that “the respondent remains ineligible to

apply for adjustment of status because the second Immigrant Petition for Alien

Worker (Form I-140) filed on his behalf is still pending and has not yet been

approved.”

      We cannot determine whether the BIA abused its discretion in denying

Ramos’s motion with regard to this issue. First, the BIA’s statement above is

inaccurate, because 8 C.F.R. § 1245.2(a)(2)(i) allows for the concurrent filing of

both the I-140 and the I-485 (adjustment of status). Second, based upon our

review of the applicable case law, regulations, and statutes, it is not clear whether

an approved I-140 is required for the visa to be “immediately available,” when the

petitioner has an approved labor certificate with a priority date of April 20, 2001.


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See 8 C.F.R. § 245.1(g); see also Merchant v. U.S. Attorney Gen., 461 F.3d 1375,

1378-79 (11th Cir. 2006) (“Finally, Merchant has successfully completed all

actions required by § 1255(i) to be performed by him and satisfied all of the

statutory prerequisites of § 1255(i)—i.e., the timely filing of his application for

labor certification, the approval thereof, and the appropriate filing of a Form I-140

(petition for visa) and of a Form I-485 (application for adjustment of status) with

the DHS, as well as demonstrating that an immigrant visa number is immediately

available.”). Therefore, we remand to the BIA to review whether Ramos had an

immediately available visa at the time of his motion to reopen. See Lanza v.

Ashcroft, 389 F.3d 917, 919 (9th Cir. 2004) (remanding for the BIA to clarify the

grounds for its decision).

      Ramos also failed to depart prior to the expiration of the voluntary departure

period. Whether the motion to reconsider must be denied for that reason is also

unclear. See Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015-16 (9th Cir.

2008) (per curiam). Ramos argues that he unilaterally withdrew his request for

voluntary departure when he renewed his I-140 application. Whether an

application for adjustment of status acts as a unilateral withdrawal of voluntary

departure has not yet been addressed by the BIA, therefore we remand for the BIA




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to address this issue in the first instance. See INS v. Orlando Ventura, 537 U.S. 12,

16-17 (2002) (per curiam).




      3.     The BIA did not err in finding that Ramos failed to demonstrate the

requisite prejudice for his claim of ineffective assistance of counsel. Ramos asserts

that his ineffective assistance of counsel claim arose out of the mishandling of his

I-140 application. The acts claimed to be ineffective assistance of counsel

occurred prior to and separate from the removal proceedings, therefore the BIA did

not err in rejecting Ramos’s claim. See Balam-Chuc v. Mukasey, 547 F.3d 1044,

1050-51 (9th Cir. 2008).

      DENIED IN PART, GRANTED IN PART and REMANDED.




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