Benson v. Ashcroft

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 28, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60116
Summary Calendar
ELENA BENSON,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of a Decision of the
Board of Immigration Appeals
BIA No. A76 241 218
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Elena Benson, a citizen of Russia, petitions for review of
the decision of the Board of Immigration Appeals (“BIA”)
summarily affirming the removal order of the Immigration Judge
(“IJ”). Because the BIA summarily affirmed without opinion, the
IJ’s decision is the final agency determination for our review.
See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003).
Benson argues that the IJ erred in finding that the
immigration court lacked jurisdiction over her adjustment

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No. 03-60116
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application. Benson maintains that the INS should not have
denied her application but should have allowed her to substitute
her second U.S. citizen spouse as a new I-130 visa petitioner in
conjunction with her original adjustment application. Benson
claims that she satisfied the requirements of 8 C.F.R.
§ 1245.2(a)(1) for renewing her application in removal
proceedings.
An alien paroled into the United States may renew an
application for adjustment of status in removal proceedings only
if the adjustment application had been previously filed.
8 C.F.R. § 1245.2(a)(1)(ii). Because Benson’s second adjustment
application was not filed until after she had been paroled into
the United States, the IJ was correct in concluding that she was
not permitted to renew her adjustment application in removal
proceedings. Benson has not cited to any relevant authority
supporting her contention that she may substitute her second U.S.
citizen husband as the I-130 visa petitioner in conjunction with
her initial adjustment application.
Benson avers that the IJ erred in determining that she was
statutorily ineligible for voluntary departure because she is an
arriving alien. This court does not have jurisdiction to review
the IJ’s denial of her application for voluntary departure.
8 U.S.C. § 1252(a)(2)(B)(I); Eyoum v. INS, 125 F.3d 889, 891 (5th
Cir. 1997).
PETITION DENIED.

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