Melgar v. Mukasey , 294 F. App'x 174 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 05-60690
Summary Calendar Charles R. Fulbruge III
Clerk
JORGE ALBERTO MELGAR
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A28 582 864
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Alberto Melgar appeals a Board of Immigration Appeals (BIA)
decision finding him ineligible to apply for relief under former § 212(c) of the
Immigration and Nationality Act (INA), former 8 U.S.C. § 1182(c). Melgar
conceded that his conviction for indecency with a child rendered him deportable
on two grounds, for his having committed a crime involving moral turpitude and
for his having committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(i),
(iii).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-60690
Melgar’s challenges to the BIA’s determination are foreclosed by our
decisions in Vo v. Gonzales, 482 F.3d 363, 367-68 (5th Cir. 2007), and
Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007). His petition for
review is thus DENIED in part. The BIA had authority to issue an order of
removal; however, Melgar should be granted an opportunity to apply for an
adjustment of status before the Immigration Judge, as he reasonably relied on
the Immigration Judge’s grant of §212(c) relief. See Avilez-Granados, 481 F.3d
at 872-73. The petition is thus GRANTED in part and the case is REMANDED
for further proceedings.
2