Yung Jian Shi v. Gonzales

MEMORANDUM ** Yung Jian Shi, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion to reopen removal proceedings. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, see Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999), and we dismiss in part and deny in part the petition for review. We lack jurisdiction to consider Shi’s contention that the IJ denied him due process by allowing him to withdraw his application for asylum. Shi did not raise this issue before the BIA and thereby failed to exhaust his administrative remedies. 8 U.S.C. § 1252 (d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Shi contends the IJ violated due process by not accepting his marriage as bona fide. Because Shi’s marriage occurred while Shi was in removal proceedings, Shi was required to submit evidence establishing that the marriage was entered into in good faith. See Malhi v. INS, 336 F.3d 989, 994 (9th Cir.2003); Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (en banc); 8 C.F.R. § 204.2 (a)(1)(iii). Shi failed to submit such evidence, and his contention therefore lacks merit. In his opening brief, Shi fails to address, and therefore has waived any challenge to, the IJ’s denial of his motion to reopen for failure to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255 (i). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding that issues not raised in a party’s opening brief are waived). PETITION FOR REVIEW DISMISSED in part; DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.