Cahoon v. Ashcroft

108 F. App'x 552

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 10, 2004
• Docket: No. 02-72891; Agency No. A70-638-201
• Status: Published

Opinions

MEMORANDUM

*

Cahoon is statutorily barred from adjustment of status. The immigration judge found that she “came to the United States as the fiancee of Hammes.” She sought adjustment based on a marriage to a different person, not Hammes. Hammes filed the petition for her visa. Under 8 U.S.C. § 1255(d), the Attorney General may not adjust the status of a § 1101(a)(15)(K) non-immigrant except “as a result of the marriage of the nonimmigrant ... to the citizen who filed the petition. ...”

Cahoon’s argument that the BIA denied her due process of law by affirming the immigration judge’s decision without opinion is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 851-52 (9th Cir. 2003). We need not address whether her case was properly streamlined by the BIA because our review of the merits of her case makes such review superfluous.

Pursuant to Desta v. Ashcroft, Cahoon’s motion for stay of removal included a timely request for stay of voluntary departure.¹ Because the motion for stay of removal was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, to the filing of the motion for stay of removal, and this stay will expire upon issuance of the mandate.

Petition DENIED.

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.

1 . Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004).