Gregorio Javier Salgado-torres, Petitioner, v. Immigration and Naturalization Service, Respondent, 99 F.3d 1146 (9th Cir. 1996)

Petition to Review a Decision of the Immigration and Naturalization Service, INS No. A27-678-354.

INS

REVIEW DENIED.

Before: PREGERSON and TROTT, Circuit Judges, and WINMILL,^*  District Judge.

MEMORANDUM^** 

Petitioner Gregorio Javier Salgado-Torres, a native and citizen of Nicaragua, petitions for review of a decision by the Board of Immigration Appeals ("BIA" or "Board") denying him asylum and withholding of deportation. Salgado-Torres also filed with this court a motion to terminate deportation proceedings on the ground that he is a lawful permanent resident and the five-year limitations period for rescinding this status has run. We have jurisdiction over the petition under 8 U.S.C. § 1105a(a) and deny it. We lack jurisdiction over the motion and dismiss it.

Substantial evidence supports the BIA's determination that, due to changed conditions in Nicaragua, Salgado-Torres no longer has a well-founded fear of persecution. The BIA therefore did not err in affirming the immigration judge's denial of Salgado-Torres's application for asylum and withholding of deportation.

Salgado-Torres did not raise before the Board the statute of limitations issue on rescission of his lawful permanent resident status. His failure to raise this issue denies us jurisdiction to consider its merits. Mabugat v. INS, 937 F.2d 426, 430 (9th Cir. 1991); see also Fisher v. INS, 37 F.3d 1371, 1376 n. 3 (9th Cir. 1994) (collecting cases), modified, 61 F.3d 1366 (9th Cir. 1995), and superseded on other grounds, 79 F.3d 955 (9th Cir. 1996) (en banc); 8 U.S.C. § 1105a(c) ("An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right."). Therefore, we dismiss Salgado-Torres's motion.¹ 

We suggest, however, that the INS evaluate the equities in this case. Salgado-Torres entered the U.S. when he was fifteen years old. He has lived here for nearly eleven years, attending high school and college and supporting himself.²  He applied for asylum in 1985, presenting a prima facie case of asylum eligibility. An immigration judge granted him asylum in 1988, when the Sandinistas still controlled Nicaragua. The BIA reversed this asylum grant in 1991 on the ground that conditions in Nicaragua had changed after the 1990 elections.³ 

We also note that the INS District Director has discretion to grant adjustment of status to asylees who received their asylum status before November 29, 1990, regardless of whether circumstances in their home country have changed to such an extent that they no longer have a well-founded fear of persecution. 8 C.F.R. § 209.2(a) (2). At the time the INS adjusted Salgado-Torres's status to lawful permanent resident, he statutorily qualified for asylum because his fear of persecution by the Sandinistas was well-founded. Thus, it was within the INS's discretion to allow Salgado-Torres to adjust his status to lawful permanent resident even though his fear of persecution is no longer well-founded due to changed conditions in Nicaragua. It is within the INS's discretion to cancel rescission proceedings. Matter of Quan, 12 I. & N. Dec. 487, 488 (Dep.Assoc.Comm'r 1967). It is also within the INS's discretion to grant a stay of deportation. 8 C.F.R. § 243.4. Given the unusual circumstances of this case, we suggest that the INS consider exercising its discretion.

Petition denied. Motion dismissed.