1 United States Court of Appeals,

Fifth Circuit.

No. 94-40592

Summary Calendar.

Lolo MAMOKA, Yoni Mamoka and Amit Mamoka, Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jan. 26, 1995.

Petition for Review of an Order of the Board of Immigration

Appeals.

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

Lolo Mamoka and her sons, Yoni and Amit Mamoka, challenge the

Board of Immigration Appeals' denial of Lolo Mamoka's application

for adjustment of status and all three petitioners' requests for

voluntary departure. We DENY the petition.

I.

Lolo Mamoka is a native of Iraq and a citizen of Israel; her

sons, Yoni and Amit Mamoka, are natives and citizens of Israel.

Lolo Mamoka, her sons and her then ex-husband first entered the

United States in 1984 "to make [a] better life", but on visitors'

visas. Although ordered by immigration authorities to leave the

United States within one month, Lolo Mamoka remained in the country

with her family until 1987, when her ex-husband returned to Israel

with their children. Lolo Mamoka joined them four months later.

In December 1988, Lolo Mamoka returned to the United States on

a visitor's visa; her ex-husband and their children joined her1 Lolo Mamoka and her ex-husband remarried in 1989, and were

divorced in October 1992.

2 shortly thereafter. 1 Although she was authorized to remain in the

United States only until mid-June 1989, Lolo Mamoka has not

departed.

In the interim, Mr. Mamoka was convicted in March 1991 for

making false and misleading statements to the I NS, and was

sentenced to two years in the custody of the Attorney General. He

moved to postpone surrender under th e condition that the entire

family would return voluntarily to Israel before July 1, 1991. Mr.

Mamoka returned to Israel in 1991, as agreed; but, as noted, Lolo

Mamoka and her sons stayed in the United States.

In 1991, Yoni and Amit Mamoka returned to Israel to visit

their father. When they were unable to obtain visas to return to

the United States, Lolo Mamoka arranged to have them smuggled in

through Mexico. The boys were apprehended in Mexico and placed in

the custody of Mexican immigration authorities. Arrangements were

made to fly them back to Israel, but during a stopover at Kennedy

Airport in New York on their way back to Israel, they escaped from

INS custody, and called their mother in Houston; she arranged to

have a friend pick them up. The next day, Lolo Mamoka flew to New

York; and she and her sons returned to Houston. Shortly

thereafter, they were arrested by immigration authorities.

On August 21, 1992, the INS ordered Lolo Mamoka to show cause

why she should not be deported for remaining in the United States

longer than she was authorized to stay; the show cause order was3

amended to include her sons. At a hearing on November 4, 1992,

Lolo Mamoka admitted the allegations in the show cause order, and

h er sons admitted entering the United States without inspection.

The hearing was continued to allow the petitioners to apply for

suspension of deportation and voluntary departure.

That December, Lolo Mamoka married Robert Mace, a United

States citizen and paraplegic, confined to a wheelchair since 1980.

On December 22, Mace filed immediate relative visa pe titions for

his wife and her sons. On January 28, 1993, Lolo Mamoka applied

for adjustment of her status to that of lawful permanent resident,

based upon her marriage. The INS approved the immediate relative

visa petitions in March and April 1993.

The deportation hearing was reconvened in June 1993. The

Immigration Judge denied Lolo Mamoka's application for adjustment

of status and all three pet itioners' requests for voluntary

departure, stating that she was "flabbergasted" by the petitioners'

"blatant" disregard for the immigration laws and their "outrageous"

behavior. The Board of Immigration Appeals affirmed the decision.

II.

Lolo Mamoka contends that the recent amendment to § 245 of the

Immigration and Nationality Act (INA) abolished "preconceived

intent" to remain in the United States as a basis for denying

adjustment of status, and that the BIA abused its discretion by

failing to address adequately significant equities in her case, by

attributing her sons' misconduct to her, and by departing from its

own precedent.4 A.

We address first whether we have jurisdiction to consider the

petition for review. S ee United States v. Garcia-Machado, 845 F.2d

492, 492 (5th Cir.1988) ("This Court must examine the basis of its

jurisdiction, on its own motion, if necessary."). The Mamokas

petitioned for review on June 24, 1994; but, on October 11, they

filed a motion with the BIA to reopen the proceedings and

reconsider its order.

Our court has not addressed the effect of filing a motion to

reopen on the finality of a deportation order. The Immigration and

Nationality Act provides that "whenever a petitioner seeks review

of an order under this section, any review sought with respect to

a motion to reopen or reconsider such an order shall be

consolidated with the review of the order." 8 U.S.C. §

1105a(a)(6). Regulations promulgated by the INS provide that

"[t]he decision of the Board shall be final except in those cases

reviewed by the Attorney General in accordance with paragraph (h)

of this section," 8 C.F.R. § 3.1(d)(2), and that "[t]he filing of

a motion to reopen or a motion to reconsider shall not serve to

stay the exec ution of any decision made in the case." I d. §

3.8(a).

When a motion to reopen is filed after a timely petition for

review has been filed, other circuits are in agreement that the

motion to reopen does not affect the finality of a final

deportation order. S ee Arango-Aradondo v. I.N.S., 13 F.3d 610, 615

(2d Cir.1994); B erroteran-Melendez v. I.N.S., 955 F.2d 1251, 12542 On the other hand, the Ninth and Eleventh Circuits have

held that a deportation order is not final and appealable when a

motion to reopen is filed prior to filing a petition for review.

See Fleary v. I.N.S., 950 F.2d 711, 713 (11th Cir.1992); Jian

Gang Chu v. I.N.S., 875 F.2d 777, 779-80 (9th Cir.1989). In

contrast, the Third, Sixth, Seventh, Eighth, and Tenth Circuits

hold that the finality of a deportation order is not affected by

the petitioner moving to reopen prior to filing a petition for

review. See Stone v. I.N.S., 13 F.3d 934, 939 (6th Cir.), cert.

granted, --- U.S. ----, 114 S.Ct. 2098, 128 L.Ed.2d 661 (1994);

Bauge v. I.N.S., 7 F.3d 1540, 1541-42 (10th Cir.), cert. denied,

--- U.S. ----, 113 S.Ct. 1605, 123 L.Ed.2d 167 (1993); White v.

I.N.S., 6 F.3d 1312, 1317 (8th Cir.1993), cert. denied, --- U.S.

----, 114 S.Ct. 2162, 128 L.Ed.2d 886 (1994); Akrap v. I.N.S.,

966 F.2d 267, 271 (7th Cir.1992); Nocon v. I.N.S., 789 F.2d

1028, 1032-33 (3d Cir.1986). Cf. Gebremichael v. I.N.S., 10 F.3d

28, 33 n. 13 (1st Cir.1993) (staying petition until BIA resolved

petitioner's motions, and consolidating initial petition with

that from BIA's denial of motion for rehearing). We express no

opinion on whether filing a motion to reopen before a petition

for review is filed affects the finality of the BIA's decision.

5 (9th Cir.1992); A lleyne v. I.N.S., 879 F.2d 1177, 1180-82 (3d

Cir.1989). 2 We agree; because the Mamokas filed a timely petition

for review before moving to reopen, the deportation order is final,

and we have jurisdiction to review it.

B.

Lolo Mamoka contends that the denial of her application for

adjustment of sta tus violates Congress' intent, expressed in the

recent amendment to § 245 of the INA, to abolish "preconceived

intent" as a basis for de nial of that adjustment. The amendment

makes it possible for persons in the United States who otherwise

are entitled to apply for an immigrant visa to apply for adjustment

of status without leaving the country. Pub.L. No. 103-317, §

506(b), (c), 108 Stat. 1765 (Aug. 26, 1994).

We agree with the INS that this issue is not properly before

us. The amendment was enacted on August 26, 1994, after Mamoka3 The petitioners assert that the recent amendment to § 245

of the INA makes Yoni and Amit Mamoka eligible for adjustment of

their status. As stated, the applicability of that amendment,

which is the subject of the pending motion to reopen, is not

properly before us.

6 sought review of the BIA's decision; in fact, the amendment is the

basis for her pending motion to reopen. Because the BIA has not

ruled on the issue, we will not consider it. 3 S ee 8 U.S.C. §

1105a(c) ("An order of deportation

... shall not be reviewed by any

court if the alien has not exhausted the administrative remedies

available to him"); F addoul v. I.N .S., 37 F.3d 185, 190 (5th

Cir.1994) ("The proper venue for proffering new evidence is

... the

BIA through a motion to reopen the case."); Y ahkpua v. I.N.S., 770

F.2d 1317, 1320 (5th Cir. 1985) (petitioner "may not introduce on

appeal issues that were not presented to or considered at the

administrative level"); A rango-Aradondo v. I.N.S., 13 F.3d at 614

(decl ining to address ineffectiveness of counsel claim until BIA

had considered it).

C.

Lolo Mamoka contends that the Board abused its discretion by

denying her application for adjustment of status, because it failed

to address adequately significant equities in her case, attributed

her sons' misconduct to her, and departed from its own precedent.

An applicant who meets the statutory requirements for adjustment of

status is eligible for, but not entitled to, discretionary relief.

See Patel v. I.N.S., 738 F.2d 239, 240 (7th Cir.1984) (citing

United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77,

77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957)). "The applicant bears the7

burden of proving that his application merits a favorable exercise

of discretion, which is an extraordinary act and a matter of

grace." Id. at 242. It is undisputed that Lolo Mamoka satisfies

the statutory requirements for adjustment of status . The BIA's

determination that the pe titioners do not warrant discretionary

relief is reviewable only for abuse of discretion. See I.N.S. v.

Bagamasbad, 429 U.S. 24, 24, 97 S.Ct. 200, 200, 50 L.Ed .2d 190

(1976); Patel, 738 F.2d at 242.

Lolo Mamoka contends that the BIA failed to address or give

appropriate weight to the following equities: (1) the reasons she

overstayed her visa and arranged to smuggle her children back into

the U nited States—her ex-husband's alcoholism and his conviction

for viola tions of United States Immigration law; (2) the

difficulties the family would encounter if her current husband, who

is a paraplegic and permanently confined to a wheelchair, were

separated from her; and (3) the fact that, except for a year and

a half spent in Israel, she and her children have lived in the

United States for ten years, and her children have attended public

school in Texas. Contrary to Lolo Mamoka's assertion, the BIA

expressly acknowledged that a "significant equity" was presented by

Mace's disability, but found that it was insufficient to outweigh

her "blatant disregard for our immigration laws".

The BIA did not abuse its discretion by failing to

specifically address Lolo Mamoka's ex-husband's alcoholism and

criminal conviction, or her long period of illegal residence in the

United States. In her brief filed with the BIA, she did not refer8

to her ex-husband's alcoholism or criminal conviction, and she has

made no attempt to explain, either to the BIA or to this court, how

her ex-husband's alcoholism or criminal conviction ex cuse or

mitigate her continuous efforts to ev ade the immigration laws of

the United States. She mentioned her length of residence only once

in her brief to the BIA, and did not elaborate on the alleged

hardship that she would suffer if deported. The BIA did not abuse

its discretion by concluding th at Lolo Mamoka's continuous and

blatant disregard for the immigration laws outweighed these

positive equities.

We reject Lolo Mamoka's contention that the BIA abused its

discretion by attributing to her the misconduct of her sons. The

BIA expressly stated that "the adverse fa ctors in the children's

case can have reference to their case alone and cannot be

attributed to [Lolo Mamoka]." The BIA's decision was based on Lolo

Mamoka's own conduct in facilitating the illegal presence of her

sons after she had knowledge of their illegal entry.

Finally, Lolo Mamoka contends that the BIA failed to provide

a reasonable explanation for departing from established precedent

holding that preconceived intent generally will not result in the

denial of an application for adjustment of status for an immediate

relative of a United States citizen. This contention is based on

the erroneous premise that the sole basis for the BIA's decision

was her preconceived intent. The BIA noted that "preconceived

intent is only one factor to be considered in exercising discretion

on an adjustm ent application", and stated that Lolo Mamoka's9

"preconceived intent wa s not the only adverse factor cited or

apparent in the record." The BIA's decision reflects that it also

considered as adverse factors her attempt to smuggle her children

into the United States and her complicity in their escape from

immigration authorities in New York, as part of a pattern of

continuous and voluntary circumvention of United States immigration

laws.

III.

For the foregoing reasons, the petition for review is

DENIED.