Kumar v. Holder , 382 F. App'x 648 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROMESH KUMAR, Nos. 07-72628
07-74951
Petitioner,
Agency No. A075-545-598
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Romesh Kumar, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) orders denying his appeal from an
immigration judge’s (“IJ”) removal order and denying his motion to reopen. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and due process claims, and for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
in part and dismiss the petition in No. 07-72628, and deny the petition in No. 07-
74951.
In No. 07-72628, Kumar has waived any challenge to the agency’s
conclusion that he is removable for overstaying his visa or that he failed to
demonstrate eligibility for relief from removal. See Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996).
We lack jurisdiction over the denial of Kumar’s ex-wife’s Form I-130 visa
petition. See 8 U.S.C. § 1252(a)(1) (granting jurisdiction to review final removal
orders). Kumar’s related due process claims fail because the IJ did not find Kumar
removable based on the marriage fraud charge. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring prejudice for a petitioner to prevail on a due
process claim).
In No. 07-74951, the BIA did not abuse its discretion in denying Kumar’s
motion to reopen on the ground that he failed to demonstrate prima facie eligibility
for adjustment of status. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171
(9th Cir. 2006) (petitioner demonstrates prima facie eligibility for relief where the
evidence reveals a reasonable likelihood that the statutory requirements for relief
2 07-74951
have been satisfied). Kumar’s contention that the BIA contradicted its holding in
Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) is unavailing.
In No. 07-72628: DENIED in part; DISMISSED in part.
In No. 07-74951: DENIED.
3 07-74951