Smethurst v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 15 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
HELEN MARY SMETHURST, No. 06-75211
Petitioner, Agency No. A076-380-159
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2011 **
Pasadena, California
Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.
Helen Mary Smethurst, a native and citizen of the United Kingdom, petitions
for review of an order by the Board of Immigration Appeals (BIA) dismissing her
appeal from an immigration judge’s (IJ) decision denying her application for
*
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).
adjustment of status. The BIA found that the Department of Homeland Security
(DHS) had the authority to revoke Smethurst’s approved Form I-140 visa petition,
thereby depriving the IJ of jurisdiction to consider her application for adjustment
of status. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for
review.
1. As an initial matter, we disregard the factual statements and arguments
submitted by Smethurst that are not relevant to this appeal. See 8 U.S.C.
§ 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is based[.]”).
2. DHS revoked Smethurst’s underlying visa petition (Form I-140) pursuant to
8 U.S.C. § 1155. Smethurst’s employers appealed DHS’s revocation to the
Administrative Appeal Office (AAO). After the AAO’s decision, Smethurst
lacked an approved visa petition. Therefore, she was no longer eligible to adjust
her status, because she had not met the requirements under 8 U.S.C. § 1255(a) —
specifically she no longer had an immigrant visa “immediately available to her.”
While IJs have jurisdiction to determine whether there has been an
equivalent employment change under 8 U.S.C. § 1154(j), INA § 204(j), see Matter
of Al Wazzan, 25 I. & N. Dec. 359, 362 (BIA 2010), they do not have jurisdiction
to reinstate a properly revoked visa petition under 8 U.S.C. § 1155, see Herrera v.
U.S. Citizenship and Immigration Servs., 571 F.3d 881, 888 (9th Cir. 2009) (noting
that Congress did not intend § 204(j) to constrain the agency’s revocation
authority).
3. There is no evidence in this record that Smethurst’s due process rights were
violated, because (a) the IJ held a full and fair hearing regarding Smethurst’s
application for adjustment of status and (b) there is no evidence of governmental
delay that prevented Smethurst from receiving a fair hearing.
To the extent that Smethurst is alleging a lack of process before the AAO or
a lack of process based upon the denials of adjustment by the INS and DHS, we
lack jurisdiction to consider the allegations. See 8 U.S.C. § 1252(b)(4)(A).
PETITION DENIED.