Yi-Yuan Hsu v. Ashcroft

119 F. App'x 665

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 12, 2005
• Docket: 04-60146
• Status: Unpublished

Opinion

PER CURIAM: *

Yi-Yuan Hsu (“Hsu”), a native and citizen of Taiwan, has petitioned this court for review of the order of the Board of Immigration Appeals (“BIA”) affirming the decision of the immigration judge (“IJ”) denying Hsu’s motion to reopen her removal case. Because the BIA summarily affirmed the IJ’s decision without an opinion, the IJ’s decision is the final agency determination for judicial review. Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir.2003). The IJ concluded that, because Hsu remained in the United States beyond her date of voluntary departure, she was not eligible for the adjustment of status that she sought. See 8 U.S.C. § 1229c(d); see also Ogbemudia v. INS, 988 F.2d 595, 599-600 (5th Cir.1993) (motion to reopen may be denied “if the movant fails to establish a prima facie case for the underlying substantive relief sought”).

This court reviews the denial of a motion to reopen for abuse of discretion, but if the denial rests on the IJ’s finding that the alien is not eligible for relief, this court reviews for legal error. Ghassan v. INS, 972 F.2d 631, 637 (5th Cir.1992). This court defers to a government agency’s interpretation of its own regulations, and the agency’s interpretation must be affirmed unless “it is plainly unreasonable.” United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir.2002).

An alien who remains in the United States beyond the authorized date of voluntary departure is ineligible for certain forms of relief, including adjustment of status, for 10 years. 8 U.S.C. § 1229c(d). It is undisputed that Hsu stayed beyond her departure date. Hsu’s contention that the IJ “could have” reopened her case and vacated the prior order of voluntary removal does not establish that the IJ abused her discretion by not doing so. Even if the IJ made a purely legal determination based on 8 U.S.C. § 1229e(d), Hsu does not establish that the IJ’s interpretation of the law was plainly unreasonable.

Accordingly, the petition for review is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.