MEMORANDUM **

Jose Melquíades Nunez-Guzman and Maria De La Luz Robles-Mariscal (husband and wife “Petitioners”) were served with Notices to Appear (“NTAs”) charging them with attempted entry without inspection in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1254 (a). The facts and prior proceedings are known to the parties and are not restated herein except as necessary.

Before an Immigration Judge (“IJ”), Petitioners admitted the alleged facts and conceded removability, but argued that they should have been processed in deportation proceedings rather than removal proceedings because they had requested deportation proceedings before April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 110 Stat. 3009 -625.

The IJ denied Petitioners’ request that removal proceedings be terminated and converted into deportation proceedings, and granted voluntary departure. On appeal, the Board of Immigration Appeals (“BIA”) determined that Petitioners were properly in removal proceedings and that suspension of deportation was unavailable. The BIA dismissed Petitioners’ appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252 (b) and deny the petition.

Petitioners argue that the IJ and BIA erred by prohibiting Petitioners from applying for suspension of deportation under the law as it existed before IIRIRA’s effective date and by dismissing the petition. Petitioners present no proof of affirmative misconduct by the INS. Petitioners’ arguments challenging their placement in removal proceedings are foreclosed by our recent decision in Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir.2001).

PETITION DENIED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.