Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted Jan. 6, 1999.
Appeal from the Board of Immigration Appeals.
Before REINHARDT, THOMPSON, and O'SCANNLAIN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Petitioner Russell Langer Allen, a native and citizen of Australia, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") denial of Allen's motion to reopen his application for adjustment of status. The BIA found that reopening was not warranted because Allen had failed to show prima facie statutory eligibility for adjustment of status, given that no visa petition was immediately available to him. Submission of this matter was deferred pending a decision by the BIA on Allen's wife's appeal of the denial of a visa petition that she filed on Allen's behalf. On September 11, 1998, the BIA dismissed her appeal and affirmed the INS District Director's denial of the visa petition. Following that decision, we directed the parties to submit briefs regarding the disposition of Allen's pending petition for review. Allen's petition is now ripe for review.
We have jurisdiction to review only the merits of the IJ and BIA's denial of adjustment of status; we do not have jurisdiction to review the BIA's denial of the visa petition filed on Allen's behalf. See 8 U.S.C. § 1105a(a); Chen Fan Kwok v. INS, 392 U.S. 206, 215 (1968). We affirm the BIA's decision denying Allen's motion to reopen. The BIA did not abuse its discretion, for, without a visa petition immediately available, Allen could not establish prima facie eligibility for adjustment of status. 8 U.S.C. § 1255(a).
Petition DENIED.