Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1990)


No. 88-7330.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 5, 1990.



Vilma Lizeth Mendizabel petitions for review of the Board of Immigration Appeals' (BIA) dismissal of her appeal from the Immigration Judge's (IJ) denial of her application for asylum and for prohibition against deportation. Mendizabel contends that 8 U.S.C. § 1154(h), which precludes certain married aliens from obtaining resident status, deprives her of due process and equal protection of the law. We dismiss the petition.

We consider de novo the question of this court's jurisdiction to review Mendizabel's petition. See United States v. Moncini, 882 F.2d 401, 403 (9th Cir. 1989).

Under 8 U.S.C. § 1105a(a), this court has jurisdiction to review "all final orders of deportation" made during deportation proceedings. 8 U.S.C. § 1105a(a); Abedi-Tajrishi v. INS, 752 F.2d 441, 443 (9th Cir. 1985). Generally, this court does not have jurisdiction to review matters outside the deportation process, Shahla v. INS, 749 F.2d 561, 562 (9th Cir. 1984), unless the validity of the final order of deportation is contingent upon the determination at issue, Chadha v. INS, 634 F.2d 408, 414 (9th Cir. 1980), aff'd, 462 U.S. 919 (1983). Moreover, issues not raised in the administrative proceedings generally may not be raised for the first time on appeal to this court. Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987).

Mendizabel has never applied for an adjustment in status based on her marriage to a permanent resident of the United States. She thus could not and did not challenge the constitutionality of section 1154(h) as applied to her in any administrative proceedings. This court would therefore normally be without jurisdiction to consider her petition. Id. at 907-08.

Mendizabel's failure to raise her constitutional challenge before the agency is not dispositive, however, because the BIA does not have jurisdiction to decide constitutional issues. Id. at 908. Yet, even a constitutional issue may not be raised for the first time on appeal if the petitioner's constitutional claim raises factual issues that have not been determined in a full factual hearing. See Abedi-Tajrishi, 752 F.2d at 443-44.1 

Here, there has been no factual showing that section 1154(h) would preclude Mendizabel from obtaining an adjustment in status if she in fact were to apply for an adjustment. The only reference to her marital status in the record indicates that she was single at the time she requested asylum in April 1985. Further, there is no evidence in the record as to when the marriage took place, or whether Mendizabel ever resided outside the United States for any period of time after the date of her marriage. Based on this record, we cannot determine whether section 1154(h) would properly apply to Mendizabel.

Therefore, because Mendizabel's claim on appeal was not decided in the order of deportation, see Vargas, 831 F.2d at 907-08, and "raises factual issues that have not been afforded an adequate hearing," Abedi-Tajrishi, 752 F.2d at 443, this court lacks jurisdiction to review her petition. See id. at 443-44.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In Dhangu v. INS, 812 F.2d 455 (9th Cir. 1987), this court found that it lacked jurisdiction to consider a petitioner's due process claim where the petitioner failed to appeal an IJ's deportation order to the BIA before petitioning the court for review. Id. at 461. The court noted that the BIA could have taken action which would render the court's consideration of the constitutional claim unnecessary. Id. at 460. The court further noted that the BIA would also be able to develop an adequate record for review. Id. at 461

In Rubio de Cachu v. INS, 568 F.2d 625 (9th Cir. 1977), this court asserted jurisdiction over the petitioner's constitutional claims even though the record did not reflect any application for an adjustment in status pursuant to the statute she was challenging. The court apparently had a sufficient factual record, however, to determine that the petitioner would in fact be denied an adjustment in status pursuant to the statute she was challenging. The court apparently had a sufficient factual record, however, to determine that the petitioner would in fact be denied an adjustment in status by operation of the statute if she applied. See also Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985) (noting that failure to resort to a statutory procedure can be excused only if it can be determined in advance that the procedure is incapable of affording due process to a petitioner).