Estillore v. Immigration & Naturalization Service

MEMORANDUM ** An Immigration Judge (“IJ”) found Virgilio P. Estillore, a native and citizen of the Philippines, excludable on the basis of various misrepresentations he made upon his entry into the United States and in his application for naturalization. Estillore subsequently sought a waiver of exclusion and made a request for voluntary departure under §§ 241(a)(1)(H) and 244(e) of the Immigration and Nationality Act (“INA”). The IJ denied both the application for a waiver and the request for voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed these rulings, and this appeal followed. For the reasons set forth below, we affirm the denial of Estillore’s application for a waiver of exclusion, and dismiss Estillore’s appeal of the BIA’s decision on voluntary departure. I. Application for a § 241(a)(1)(H) Waiver of Exclusion Because Estillore was in deportation proceedings prior to April 1, 1997, this case falls under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). See IIRIRA § 309(c). Pursuant to these rules, we apply pre-IIRIRA law in reviewing the BIA’s denial of § 241(a)(1)(H) relief, 1 which directs us to review the BIA’s decision for an abuse of discretion. See INS v. Yang, 519 U.S. 26, 28 , 117 S.Ct. 350 , 136 L.Ed.2d 288 (1996). We conclude that the BIA did not abuse its discretion in this case. As noted by the BIA, Estillore made multiple misrepresentations to the INS, both upon entry and in his application for naturalization. Moreover, Estillore’s wife and three children currently reside in Asia, with all three children living in the Philippines. Given these facts, we cannot say that the BIA’s decision to deny § 241(a)(1)(H) relief amounted to an abuse of discretion. Therefore, the BIA’s decision to deny § 241(a)(1)(H) relief is affirmed. II. Request for Voluntary Departure As noted above, this appeal is governed by IIRIRA’s transitional rules. Pursuant *859 to these rules, there is no appeal of discretionary decisions made under § 244 of the INA in cases, like Estillore’s, in which the final order of deportation is entered after the enactment of IIRIRA. See IIRIRA § 309(c)(4)(E). Because the BIA’s denial of Estillore’s request for voluntary departure was a discretionary decision made under § 244, Estillore has no right to appeal the BIA’s ruling. See Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir.1998). Thus, Estillore’s appeal of the BIA’s decision on voluntary departure must be dismissed. III. Conclusion For the reasons set forth above, the BIA’s denial of § 241(a)(1)(H) relief is AFFIRMED, and Estillore’s appeal of the BIA’s decision on voluntary departure is DISMISSED. 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. . Therefore, we ignore IIRIRA’s modification and redesignation of § 241(a)(1)(H), as well as IIRIRA’s provision that eliminates judicial review of discretionary decisions by the Attorney General. See IIRIRA §§ 305(a)(2), 306(a)(2), 308.