This order and judgment is not binding precedent, except under the doctrines of *

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

April 4, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTIN RINCON RIVAS and MARIA

CASTRO DE RINCON,

Petitioners,

v. No. 06-9545

ALBERTO R. GONZALES, Attorney

General,

Respondent.

(Agency Nos. 

A78-891-449, A78-891-450)

(Petition for Review from an Order of

The Board of Immigration Appeals)

ORDER AND JUDGMENT

*

Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument. 

Martin Rincon Rivas (Rincon) and Maria Castro De Rincon (Castro) petition for
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review of an order removing them from the United States to Mexico. Castro contends

that the immigration judge (IJ) erred in allowing the Attorney General to withdraw a

charge filed against her for false representation. Further, Rincon and Castro jointly

contend that the IJ should have granted their request to continue the removal proceedings

because Rincon had filed a labor certification request that could result in an employmentbased visa. We exercise jurisdiction under 8 U.S.C. § 1252(a) and dismiss the petition for

lack of jurisdiction. 

I.

Rincon and Castro, a married couple, are citizens of Mexico who entered the

United States illegally in early 1997. The Attorney General initiated removal proceedings

against them in 2004. In addition to charging both with unauthorized entry, the Attorney

General alleged that Castro had also falsely represented herself to be a United States

citizen. Over Castro’s objection, the IJ subsequently allowed the Attorney General to

withdraw the false representation charge before the IJ had made any findings regarding

the charge. 

Before the IJ ruled on removal, Rincon and Castro’s counsel requested a

continuance to await a decision by the United States Department of Labor on Rincon’s

pending application for alien employment certification. The petitioners asserted that the

certification would allow Rincon to request an employment-based visa. The IJ denied

their request because it was unknown how long the certification process would take and

the likelihood of certification was speculative at best. 
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The IJ thereafter ordered the removal of Rincon and Castro from the United States

because they had not provided evidence showing their lawful entry. The IJ specifically

noted that he had made “no finding” on the withdrawn false representation charge. Aplt.

App. at 39. The Board of Immigration Appeals (BIA) affirmed, without opinion, the IJ’s

rulings. Rincon and Castro now petition for review of the BIA’s decision. 

II.

When the BIA “‘summarily affirms or adopts an immigration judge’s decision, this

court reviews the judge’s analysis as if it were the BIA’s.’” Wiransane v. Ashcroft, 366

F.3d 889, 897 (10th Cir. 2004) (citation omitted). We examine legal determinations de

novo and findings of fact under a substantial evidence standard. Niang v. Gonzales, 422

F.3d 1187, 1196 (10th Cir. 2005). Further, we review jurisdictional issues de novo. 

Itaeva v. INS, 314 F.3d 1238, 1240 (10th Cir. 2003). Rincon and Castro argue that the IJ

erred in two regards: when he allowed the Attorney General to withdraw the false

representation charge, and when he denied their request for a continuance. 

A. 

Castro contends that the withdrawal of the false representation charge prevented

her from refuting it, thereby preserving the allegation as “forevermore unchallengeable in

any court or agency.” Pet’r Br. at 21. Castro argues that she will be unable to return to

the United States so long as this allegation remains unadjudicated.

We are without jurisdiction to consider Castro’s argument. Title 8 U.S.C. §

1252(g) deprives us of jurisdiction to review the Attorney General’s decision to
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commence or adjudicate removal proceedings: 

Except as provided in this section and notwithstanding any other provision of

law (statutory or nonstatutory), including section 2241 of title 28, United

States Code, or any other habeas corpus provision, and sections 1361 and 1651

of such title, no court shall have jurisdiction to hear any cause or claim by or

on behalf of any alien arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this Act.

(emphasis added). The three enumerated acts – commencing proceedings, adjudicating

cases, and executing removal orders – “represent the initiation or prosecution of various

stages in the deportation process.” Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471, 483 (1999), reh’g denied by, 526 U.S. 1081 (1999). “Section 1252(g) was

directed against a particular evil: attempts to impose judicial constraints upon

prosecutorial discretion.” Id. at 485 n.9. The provision confirms that “[a]t each stage the

Executive has discretion to abandon the endeavor” without judicial interference. Id. at

483-84; see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120 (9th Cir. 2001) (“It is

this very decision to either ‘abandon the endeavor’ or to adjudicate it that Congress

wished to preserve from judicial review.”). 

Castro’s claim clearly falls within subsection (g)’s prohibition on judicial review

of the Attorney General’s decision to commence or adjudicate an immigration case. By

challenging the Attorney General’s decision to abandon the false representation charge,

Castro is asking us to review the Attorney General’s prosecutorial decision regarding

what charges will or will not be pursued against her. Subsection (g) prohibits us from

engaging in precisely this type of review because by raising this issue Castro is
Castro cites to Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), to support her 1

contention that the withdrawal of charges without a hearing violates due process. As the

Attorney General points out, however, that case involved an asylum applicant’s right to

have his claims heard by an immigration judge, not the right of a removable alien to have

a hearing on withdrawn claims. See id. at 968-71.

Although the petitioners mention, at various points, other petitions that may 2

justify adjustment of status, the basis for their request for a continuance was the pending

application for certification. See A.R. at 67. 

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attempting to impose judicial constraints on the Attorney General’s discretion to choose

which charges will be pursued. The Attorney General’s decision to “abandon the 1

endeavor” regarding the false representation charge is beyond our jurisdictional purview. 

B. 

The petitioners also assert that the IJ erred in denying their request for a

continuance of the proceedings pending the outcome of Rincon’s labor certification

request. Again, we must first address whether we have jurisdiction to review the denial 2

of a request for a continuance. We have previously held that “8 U.S.C. §

1252(a)(2)(B)(ii) bars review of [an] IJ’s discretionary decision denying [a] petitioner’s

motion for a continuance.” Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004). 

Our prior ruling in Yerkovich is controlling here. Title 8 U.S.C. § 1252(a)(2)(B)(ii) bars

our review of the IJ’s decision to deny a continuance.

After we decided Yerkovich, Congress passed the REAL ID Act of 2005. Section

1252 was amended to provide that 8 U.S.C. § 1252(a)(2)(B) shall not “be construed as

precluding review of constitutional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in accordance with this section.” See 8
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U.S.C. § 1252(a)(2)(D). We have interpreted this provision as granting courts jurisdiction

to review constitutional claims and “‘a narrow category of issues regarding statutory

construction.’” Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quoting Chen

v. United States DOJ, 434 F.3d 144, 153 (2d Cir. 2006)). “However, challenges directed

solely at the agency’s discretionary and factual determinations remain outside the scope

of judicial review.” Id. at 1281 (citation omitted). The petitioners do not raise any

constitutional claim or question regarding statutory interpretation, relying instead on their

argument that it was an abuse of the IJ’s discretion to deny their motion. See Pet’r Br. at

26-28. 

III.

We DISMISS the petition for review for lack of jurisdiction. 

 

Entered for the Court

Mary Beck Briscoe

Circuit Judge