United States v. 2011-10-31 | 07-71415 | DAVE V. HOLDER | nonprecedential | memorandum disposition |

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIMISH SHIRISH DAVE; ) No. 07-71415
JUI ROHIT PATEL, )
) Agency Nos. A079-195-915
Petitioners, ) A079-195-916
)
v. ) MEMORANDUM*
)
ERIC H. HOLDER Jr., Attorney )
General, )
)
Respondent. )
)
NIMISH SHIRISH DAVE; ) No. 07-72573
JUI ROHIT PATEL, )
) Agency Nos. A079-195-915
Petitioners, ) A079-195-916
)
v. )
)
ERIC H. HOLDER Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
OCT 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Robert J. Timlin, Senior United States District Judge for
the Central District of California, sitting by designation.
1 While Patel filed a separate appeal, no separate arguments are made on her
behalf. Thus, we treat her position here as derivative of Dave’s and will not refer
to her separately. See 8 U.S.C. § 1153(d).
2 See 8 U.S.C. § 1229a(c)(7)(B).
3 See 8 U.S.C. § 1229a(c)(6)(C).
2
Submitted October 11, 2011 **
Pasadena, California
Before: FERNANDEZ and CALLAHAN, Circuit Judges, and TIMLIN,***
District Judge.
Nimish Shirish Dave and Jui Rohit Patel,1 citizens of Canada, petition for
review of the Board of Immigration Appeals’ denial of their motion to reopen to
consider an application for adjustment of status, 2 and their motion to reconsider
that denial.3 We deny the petitions.
Dave asserts that the BIA erred when it determined that he had not made out
a prima facie case for adjustment of status pursuant to 8 U.S.C. § 1255(i)(1), (2).
We disagree. Dave failed to present sufficient evidence that he had an approved
labor certification. See 8 U.S.C. § 1182(a)(5)(A). Absent that, Dave could not
spell out a prima facie case for relief because he needed that in order to obtain an

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4 8 U.S.C. § 1153(b)(3)(C).
5 8 U.S.C. § 1255(i)(2)(A).
3
immigrant visa,4 which he, in turn, needed to obtain adjustment of status. 5 The
BIA did not abuse its discretion. See Edu v. Holder, 624 F.3d 1137, 1142 n.4 (9th
Cir. 2010); Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); see also
INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 725, 116 L. Ed. 2d 823
(1992).
Petitions DENIED.

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