Unpublished Disposition, 935 F.2d 275 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1989)

No. 89-70496.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,**  District Judge.

MEMORANDUM*** 

Petitioner Patrocinio Fish, also known as Patrocinio Palou, contests the Board of Immigration Appeals' (the Board) (1) denial of her request for voluntary departure; (2) denial of her motion to remand on the voluntary departure issue; (3) denial of her motion to remand for adjustment of status; (4) failure to act upon her application for waiver of excludability; and (5) failure to act upon her request to change venue. The Board dismissed Fish's appeal and denied her motions to remand. We deny Fish's petition for review.

* Because of Fish's fraud in procuring a visitor's visa, and because of her preconceived intent to come to the United States and marry a United States citizen, the Immigration Judge, as a matter of discretion, denied Fish voluntary departure in lieu of deportation. The Board exercised its discretion and affirmed the Immigration Judge's decision. The Board also denied Fish's motion to remand her requests for voluntary departure and adjustment of status to the Immigration Judge.

* Voluntary departure may be denied for either statutory ineligibility or in the exercise of discretion. 8 U.S.C. § 1254(e); Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). We review a discretionary denial of voluntary departure for an abuse of discretion. See Estrada-Posadas v. INS, 924 F.2d 916, 920 (9th Cir. 1991); Villanueva-Franco, 802 F.2d at 329. When an adjudicating body exercises its discretion in denying voluntary departure, it need not determine whether the person seeking relief is statutorily eligible. Villanueva-France, 802 F.2d at 329.

Fish claims that the Board abused its discretion because it failed to articulate its reasons for denying her appeal. This argument lacks merit. "All that is necessary is a decision that sets out terms sufficient to enable us as a reviewing court to see that the Board has heard, considered and decided." Villanueva-Franco, 802 F.2d at 330. The Board's decision clearly reveals that it considered all the relevant facts in its exercise of discretion. As the record demonstrates, the Board found that Fish's fraud in procuring a visitor's visa and her bigamous marriage to a United States citizen outweighed Fish's single equity, her relationship to her United States "husband."

B

On May 19, 1989, while her appeal to the Board was pending, Fish moved to reopen proceedings in her case to allow her to submit new evidence. The Board treated the motion as a motion to remand. Although the motion to remand did not expressly raise the issue of voluntary departure, the Board addressed the issue in its consideration of the motion.

When the Board denies a motion to remand because it finds that the underlying relief would not be granted as a matter of discretion, we review the Board's denial for abuse of discretion. INS v. Rios-Pineda, 471 U.S. 444, 449 (1985). The Board properly may deny relief as a matter of discretion as long as the "explanation of its decision was grounded in legitimate concerns about the administration of the immigration laws and was determined on the basis of the particular conduct of [the] respondent." Id. at 451-52.

In its decision, the Board took note of the new evidence Fish presented. The Board also noted Fish's fraud in procuring a visa and her bigamous marriage. After considering all the evidence, the Board denied Fish's motion to remand because, "the evidence of record fail [ed] to demonstrate a reasonable likelihood that the relief sought on remand would be granted as a matter of discretion...."

The Board articulated the reasons for its decision and based its decision on a reasoned consideration of the facts of the case. See Rios-Pineda, 471 U.S. at 451-52. Therefore, Fish's argument that the Board abused its discretion in denying her motion is without merit.

II

Fish claims that the Board abused its discretion by denying her motion to remand her application for adjustment of status. Fish petitioned the Immigration and Naturalization Service to adjust her status from a non-immigrant to a lawful permanent resident pursuant to 8 U.S.C. § 1255. The Immigration Judge denied her petition. As part of her May 19, 1989 motion to remand, Fish asked the Board to remand the issue of adjustment of status in light of new evidence. The Board denied Fish's motion to remand. We review the Board's denial of a motion to remand for abuse of discretion. See Rios-Pineda, 471 U.S. at 449.

Fish filed an application for a waiver of excludability pursuant to 8 U.S.C. § 1182(i) in support of her motion to remand. The Board made no findings regarding Fish's statutory eligibility for adjustment of status. The Board is free to pretermit the question of statutory eligibility if it finds that it would deny a motion to remand as a matter of discretion. Id.; INS v. Bagamasbad, 429 U.S. 24, 25 (1976). The Board made such a finding.

Fish argues that the Board abused its discretion because it did not act upon her section 1182(i) waiver application and because it considered her fraud in procuring a visitor's visa when it denied her application for adjustment of status.

We have considered a similar case in which the Board considered an alien's past visa fraud in an adjustment of status case despite the alien's application for a section 1182(i) waiver. See Jen Hung Ng v. INS, 804 F.2d 534 (9th Cir. 1986). Without considering Ng's statutory eligibility, the Board exercised its discretion and denied Ng's motion to reopen. Id. at 537-40. The Board's decision was based in part on Ng's prior fraud which was the subject of his 1182(i) waiver application. Id. We remanded the case on other grounds, but did not find fault with the Board's consideration of Ng's prior fraud. See id. Such an outcome makes sense in light of the Board's freedom to forego the question of an applicant's statutory eligibility. See Rios-Pineda, 471 U.S. at 449.

The Board's consideration of Fish's past visa fraud as an adverse factor was proper. See Ng, 804 F.2d at 537-40. Because the Board did not consider Fish's statutory eligibility, it had no reason to act upon Fish's waiver application. See Rios-Pineda, 471 U.S. at 449. The Board weighed the evidence and found that Fish "fail [ed] to demonstrate a reasonable likelihood" of a favorable exercise of discretion. Because the Board considered all the relevant circumstances, its exercise of discretion was proper. See Ng, 804 F.2d at 538.

III

We review a denial of a motion to change venue for abuse of discretion. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). The Board's refusal to consider the request was not an abuse of its discretion. Because venue decisions rest with the Immigration Court itself, the Board lacked jurisdiction over Fish's change of venue request. See 8 C.F.R. Sec. 3.1(b) (specifying the Board's appeal jurisdiction). Moreover, given the Board's denial of Fish's motion to reopen, her request was moot.

IV

In her brief to this Court, Fish presented facts which have not been presented to the Board. Petitioner asks the Court to remand her case to the Immigration Judge based on this new evidence. Fish must exhaust her remedies under the Act. 8 U.S.C. § 1105; see also Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985); Patel v. INS, 741 F.2d 1134, 1137 n. 2 (9th Cir. 1984); Ramirez-Gonzales v. INS, 695 F.2d 1208, 1213 (9th Cir. 1983). Therefore, we will not consider Fish's new evidence.

Fish alternatively requests the Court to stay its mandate until the Board acts on the motion to reconsider currently before the Board. We will not stay our proceedings while Fish's motion to reconsider is heard by the Board. See Larimi v. INS, 782 F.2d 1494, 1497 (9th Cir. 1986) (petition for unlimited stay while visa application is adjudicated denied; court noted that stay was not necessary for alien to apply to the Board for relief).

The Board did not abuse its discretion in dismissing Fish's appeal and denying her motion to reopen. Fish's request for a stay is denied.

PETITION DENIED

 *

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

 **

The Honorable Stephen M. McNamee, United States District Judge for the District of Arizona, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as probided by Ninth Circuit R. 36-3