Cardenas-Chavarin v. Mukasey , 265 F. App'x 184 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2008
No. 07-60262
Summary Calendar Charles R. Fulbruge III
Clerk
MIGUEL CARDENAS-CHAVARIN
Petitioner
v.
MICHAEL B MUKASEY, U.S. Attorney General
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 568 651
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Miguel Cardenas-Chavarin (Cardenas), a citizen of Mexico, petitions this
court for review of an order denying his application for adjustment of status to
that of lawful permanent resident and ordering his removal to Mexico. The
Board of Immigration Appeals (BIA) affirmed the order of the immigration judge
(IJ). The respondent moves for summary disposition based on this court’s
*
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should not be published and is not precedent except under the limited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.
No. 07-60262
decision in Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir.),
cert. denied, 546 U.S. 1031 (2005).
Cardenas argues that the BIA erred by determining that he was not
eligible for adjustment of status. Because he was inadmissible pursuant to
8 U.S.C. § 1182(a)(9)(C)(i)(I), the BIA did not act arbitrarily when it determined
that Cardenas was not eligible for adjustment of status under 8 U.S.C.
§ 1255(i)(1)(A)(i). Mortera-Cruz, 409 F.3d at 255-56. Although Cardenas
contends that Mortera-Cruz was wrongly decided and asks this court to overrule
it, one panel of this court cannot overrule a prior panel determination. See
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
Cardenas urges that he could have obtained adjustment of status if he had
been granted permission to reapply for admission, and he asserts that he should
be given the opportunity to obtain a nunc pro tunc I-212 waiver to retroactively
cure his illegal reentry. However, Cardenas never affirmatively sought
permission to apply for readmission, and he does not specify on what grounds
any such request would have been based. Moreover, Cardenas’ argument is
based on Ninth Circuit's decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783(9th Cir. 2004), which was specifically rejected by this court in Mortera-Cruz.
See 409 F.3d at 255-56.
Cardenas opines that the BIA’s decision leaves it open to constitutional
attack, but he has abandoned any such constitutional challenge by failing to
brief it. See Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993); see also
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because this court is
bound by Mortera-Cruz, there is no substantial question as to the outcome of the
case, and summary disposition is appropriate. See NLRB v. Evans Plumbing
Co., 639 F.2d 291, 292 n.1 (5th Cir. 1981). The petition for review is denied.
MOTION FOR SUMMARY DISPOSITION GRANTED; PETITION FOR
REVIEW DENIED.
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