                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                           FOR THE NINTH CIRCUIT                              OCT 31 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
NIMISH SHIRISH DAVE;                   )     No. 07-71415
JUI ROHIT PATEL,                       )
                                       )     Agency Nos. A079-195-915
      Petitioners,                     )                 A079-195-916
                                       )
      v.                               )     MEMORANDUM*
                                       )
ERIC H. HOLDER Jr., Attorney           )
General,                               )
                                       )
      Respondent.                      )
                                       )
NIMISH SHIRISH DAVE;                   )     No. 07-72573
JUI ROHIT PATEL,                       )
                                       )     Agency Nos. A079-195-915
      Petitioners,                     )                 A079-195-916
                                       )
      v.                               )
                                       )
ERIC H. HOLDER Jr., Attorney           )
General,                               )
                                       )
      Respondent.                      )
                                       )

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



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted October 11, 2011**
                                Pasadena, California

Before:        FERNANDEZ and CALLAHAN, Circuit Judges, and TIMLIN,***
               District Judge.

      Nimish Shirish Dave and Jui Rohit Patel,1 citizens of Canada, petition for

review of the Board of Immigration Appeals’ denial of their motion to reopen to

consider an application for adjustment of status,2 and their motion to reconsider

that denial.3 We deny the petitions.

      Dave asserts that the BIA erred when it determined that he had not made out

a prima facie case for adjustment of status pursuant to 8 U.S.C. § 1255(i)(1), (2).

We disagree. Dave failed to present sufficient evidence that he had an approved

labor certification. See 8 U.S.C. § 1182(a)(5)(A). Absent that, Dave could not

spell out a prima facie case for relief because he needed that in order to obtain an



      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Robert J. Timlin, Senior United States District Judge for
the Central District of California, sitting by designation.
      1
        While Patel filed a separate appeal, no separate arguments are made on her
behalf. Thus, we treat her position here as derivative of Dave’s and will not refer
to her separately. See 8 U.S.C. § 1153(d).
      2
          See 8 U.S.C. § 1229a(c)(7)(B).
      3
          See 8 U.S.C. § 1229a(c)(6)(C).

                                           2
immigrant visa,4 which he, in turn, needed to obtain adjustment of status.5 The

BIA did not abuse its discretion. See Edu v. Holder, 624 F.3d 1137, 1142 n.4 (9th

Cir. 2010); Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); see also

INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 725, 116 L. Ed. 2d 823

(1992).

      Petitions DENIED.




      4
          8 U.S.C. § 1153(b)(3)(C).
      5
          8 U.S.C. § 1255(i)(2)(A).

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