Hernandez-Madrigal v. Gonzales

138 F. App'x 967

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2005
• Docket: No. 04-73001
• Status: Published

Opinion

MEMORANDUM

**

Wilberto Hernandez-Madrigal, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an immigration judge’s denial of his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s resolution of questions of law de novo, and its determinations of fact, including determinations regarding eligibility for adjustment of status, for substantial evidence. He 3d 824, 832 (9th Cir.2003). We deny in part and dismiss in part the petition for review.

The BIA properly determined that Hernandez-Madrigal was ineligible for adjustment of status because, at the time of his application, the Department of State Visa Bulletin indicated that an immigrant visa was not immediately available to him, as required by 8 U.S.C. § 1255(a). See Hernandez, 345 F.3d at 841-42.

Hernandez-Madrigal contends that he was denied due process, but he failed to raise this issue before the BIA and we therefore dismiss for lack of jurisdiction. See 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that exhaustion is mandatory and jurisdictional).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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.