Adan Prieto-Cortez v. MATTHEW G. WHITAKER, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAN PRIETO-CORTEZ,
Petitioner,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
No. 16-72048
Agency No. A095-804-565
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 9, 2019**
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and ROBRENO,*** District
Judge.
On June 23, 2016, Petitioner Adan Prieto-Cortez filed a petition in this court
seeking review "from the decision of the District Director denying his request for a
FILED
JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Eduardo C. Robreno, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.

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stay, pending the adjudication of his DACA application." At that time, no final
order of removal existed and nothing was pending before the Board of Immigration
Appeals ("BIA"). Petitioner later filed a motion to reopen with the BIA, which the
BIA denied. Petitioner did not file a petition for review from the BIA’s decision.
He now asks us to construe his original petition for review from the District
Director’s decision as a timely petition for review from the BIA’s later denial of
his later motion to reopen. We decline to do so.
Even assuming that we were to adopt the view—taken by some but not all of
our sister circuits1—that a premature petition for review could "ripen," that concept
does not apply when a different decision-maker and a substantively different issue
are involved. The earlier petition is not effective to obtain review of a decision not
yet made, in a proceeding not yet even set in motion.
Petition DISMISSED.
1 See Abdisalan v. Holder, 774 F.3d 517, 527 & n.9 (9th Cir. 2015) (en
banc) (noting the circuit split and that the issue remains open in this court).
2

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