Ky Lay Luong v. Mukasey

MEMORANDUM ***

Ky Lay Luong is a native and citizen of Vietnam who, along with his family, was admitted into the United States on September 29, 1975. In 1999, Luong married U.S. citizen Patricia Rodriguez Luong, the mother of his fifteen-year-old son and his twenty-year-old step-daughter. Currently, Luong does not have any family members in Vietnam.

*698 In 1986, following a trial that resulted in a hung jury, Luong pled guilty to assault with a firearm and vehicle theft. In 1998, Luong pled no contest to robbery in the second degree. On December 7, 1999, Luong was served with a Notice to Appear issued on the basis of his 1986 conviction. In May of 2000, while removal proceedings were pending before the Immigration Judge (“IJ”), Luong’s wife filed an 1-180 spousal visa application. Initially, the IJ continued the proceedings pending adjudication of the 1-130 application. The Government moved to pretermit consideration of the 1-130 visa on the ground that Luong’s criminal convictions would bar his adjustment status even if the 1-130 application were approved.

In the proceedings before the IJ, Luong sought both adjustment of status pursuant to § 245 of the Immigration and…

dissenting:

We do not have jurisdiction to consider Luong’s § 212(h) argument, either alone or as part of his theory of simultaneous relief, because he failed to exhaust it.

*699 The IJ concluded that Luong was ineligible for § 212(h) relief, in part because Luong did not file form 1-601, paperwork necessary for seeking such relief. In his appeal to the BIA, Luong stated that the IJ erred in reaching this conclusion, but then admitted he had not filed the paperwork and expressly abandoned his § 212(h) argument. The relevant portion of Luong’s brief to the BIA states:

(emphasis added).

Because Luong expressly abandoned the § 212(h) issue, his appeal was not sufficient “to put the BIA on notice that he was challenging the IJ’s ... determination” or to give “the agency ... an opportunity to pass on th[e] issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004). Accordingly, Luong failed to exhaust the § 212(h) issue, we lack jurisdiction to consider it, and the petition should be denied. See id.