Rogelio Alcantar Hernandez v. Jefferson Sessions , 697 F. App'x 492 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 31 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO ALCANTAR HERNANDEZ, No. 13-70037
Petitioner, Agency No. A087-130-996
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2017**
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
Rogelio Alcantar Hernandez (“Alcantar”), a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the immigration judge’s (“IJ”) denial of his application for adjustment of
status. Because the BIA conducted a de novo review, “our review ‘is limited to the
BIA’s decision, except to the extent the IJ’s opinion [was] expressly adopted.’”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia
v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny Alcantar’s petition.
1. Alcantar conceded his inadmissibility under Immigration and
Naturalization Act (“INA”) § 212(a)(9)(C)(i)(I). Therefore, the BIA properly
determined that Alcantar is ineligible for adjustment of status under INA § 245(i),
pursuant to In re Briones, 24 I. & N. Dec. 355 (BIA 2007). Alcantar applied for
adjustment of status on November 13, 2008, almost a full year after Briones was
decided. Because this is not a retroactive application of Briones, we need not
analyze retroactivity under Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328
(9th Cir. 1982). Cf. Garfias-Rodriguez v. Holder, 702 F.3d 504, 520–23 (9th Cir.
2012) (en banc) (because Garfias applied for adjustment under INA § 245(i) five
years before the BIA issued Briones, we analyzed whether applying Briones was
impermissibly retroactive under Montgomery Ward).
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2. We lack jurisdiction to determine whether the IJ violated Alcantar’s due
process rights by not assessing whether he was eligible for voluntary departure.
Because Alcantar failed to raise this issue before the BIA, we are barred, for lack
of subject matter jurisdiction, from reaching it. Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004).
3. The BIA adequately articulated its reasons for denying Alcantar’s appeal,
and thus satisfied the requirements of due process. The BIA explained that
Alcantar was ineligible for adjustment of status pursuant to Briones and our
decision in Garfias-Rodriguez because he had conceded inadmissibility under
section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act. Alcantar’s
appeal involved a pure legal issue, and the BIA explained the law governing its
decision. See Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2015) (en banc)
(holding that due process requires the BIA to “provide a reasoned explanation for
its actions . . . . [and] a minimum degree of clarity in dispositive reasoning and in
the treatment of a properly raised argument” (internal quotation marks omitted)).
PETITION DENIED.
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