Opinion
No. 05-70976.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 16, 2007.
Frank P. Sprouls, Esq., Law Office of Ricci and Sprouls, San Francisco, CA, for Petitioners.
Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, John D. Williams, Esq., William C. Peachey, DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A95-574-970, A9S-574-971.
Before: KOZINSKI, LEAVY and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Alberto Martinez Moreno and his wife, Micaela Lopez Martinez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and deny the petition for review.
The petitioners indicated in their motion to reopen that an application for labor certification had been filed by Martinez Moreno's employer, but they did not show that an immigrant visa was immediately available to Martinez Moreno. Accordingly, the BIA did not abuse its discretion in denying the petitioners' motion to reopen. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that BIA may deny an alien's motion to reopen if movant is not prima facie eligible for relief sought). Further, the petitioners' reliance on Matter of Velarde-Pacheco, 23 I. N. Dec. 253 (BIA 2002) (en banc), is unavailing, as their case does not satisfy the five factors set forth by that decision. See id. at 256.
Moreover, the BIA did not abuse its discretion in concluding that the petitioners failed to submit an adjustment of status application with their motion as required by 8 C.F.R. § 1003.2(c)(1).
PETITION FOR REVIEW DENIED.