Jackson v. Mukasey

305 F. App'x 369

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 26, 2008
• Docket: Nos. 05-74226, 05-76130
• Status: Published

Opinion

MEMORANDUM

**

Clemencia D. Jackson, a native and citizen of the Philippines, petitions for review of two Board of Immigration Appeals (“BIA”) orders: the June 21, 2005 order affirming the BIA’s prior decision granting the government’s motion to reconsider; and the September 26, 2005 order denying Jackson’s motion to reconsider and reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo questions of law. Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We grant the petition for review in No. 05-74226 and remand, and dismiss the petition in No. 05-76130.

The BIA correctly determined that the immigration judge lacked jurisdiction over Jackson’s 1-751 waiver because the Department of Homeland Security (“DHS”) had not yet adjudicated the application. See 8 C.F.R. § 1216.5(c), (f) (DHS has jurisdiction over waiver applications, and an alien may appeal an adverse decision in removal proceedings). As DHS never had the opportunity to adjudicate the application, however, we agree with Jackson’s contention that the BIA was required to remand her case under Matter of Stowers, 22 I. & N. Dec. 605, 613-14 (BIA 1999) (en banc).

In light of this disposition, we dismiss the petition in No. 05-76130.

No. 05-74226: PETITION FOR REVIEW GRANTED; REMANDED.

No. 05-76130: PETITION FOR REVIEW DISMISSED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.