United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 12, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_______________________
No. 02-60756
_______________________
ANTONIO BRAVO-GALLAGA,
A42 909 078
Petitioner,
versus
JOHN D. ASHCROFT,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before JONES, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
Per Curiam:*
The Court has carefully considered this appeal in light
of the briefs, record and oral arguments. Having done so, we
affirm both the Board’s decision to deny Bravo-Gallaga’s motion to
terminate his removal proceeding and its order of removal.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Petitioner contends that the Board’s interpretation of
8 C.F.R. § 239.2(f) to require “an affirmative communication of the
[Immigration and Naturalization] Service” in line with Matter of
Cruz, 15 I&N Dec. 236 (BIA 1975), is wrong. Since applicable law
and procedures have changed since Cruz was issued, Petitioner
contends he is deprived of the opportunity for a court to review
his prima facie eligibility for naturalization. He suggests the
immigration judge misapplied Cruz by refusing to adjudicate his
prima facie eligibility and instead demanding a statement from the
Service, especially because the Service was then engaged in trying
to deport him. Alternatively, Petitioner urges that Cruz be
“revisited” to permit immigration judges to rule on the issue of
prima facie eligibility for purposes of § 239.2(f).
In our view, these arguments are unavailing for three
reasons. First, the statutes still do not authorize immigration
judges or the Board to decide issues of naturalization. Second,
Petitioner’s inability to obtain a decision from a court (though he
never went to court for such relief) or the Service amounts to
harmless error in this case, because his conviction for alien
smuggling destroyed his prima facie eligibility for naturalization
at the time of the immigration hearing. Finally, this court lacks
jurisdiction to require the Board to “revisit” its own decision,
and we are without authority to issue an order in this appeal
compelling the Service to rule in a separate administrative
proceeding on Bravo-Gallaga’s prima facie eligibility.
2
The Board did not abuse its discretion in denying the
relief requested. AFFIRMED.
3