Alonzo Valenzuela v. Eric H. Holder Jr. , 421 F. App'x 745 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALONZO ISRAEL VALENZUELA, No. 08-73333
Petitioner, Agency No. A036-172-069
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2011
Pasadena, California
Before: TASHIMA and FISHER, Circuit Judges, and WOLF, District Judge.**
Petitioner Alonzo Israel Valenzuela, a native of Mexico and a lawful
permanent resident of the United States, petitions for review of the Board of
Immigration Appeal’s (BIA) denial of relief from removal and refusal to remand
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
for consideration of an application for adjustment of status. We have jurisdiction
to under 8 U.S.C. § 1252(a) and we deny the petition.
Petitioner was ordered removed to Mexico under Immigration and
Naturalization Act (INA) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), on the
basis of a 1994 felony conviction for assault with a deadly weapon, Cal. Penal
Code § 245(a)(1). The Immigration Judge (IJ) found Petitioner ineligible for
discretionary waiver of removal under former INA § 212(c), 8 U.S.C. § 1182(c)
(repealed 1996), because the basis for his removal, a crime of violence aggravated
felony, has no comparable ground of inadmissibility in INA § 212(a), 8 U.S.C.
§ 1182(a), as required by 8 C.F.R. § 1212.3(f)(5), the “statutory counterpart” rule.
The BIA affirmed. It also rejected Petitioner’s motion to remand. This petition for
review followed.
We review questions of law and constitutional claims de novo. Khan v.
Holder, 584 F.3d 773, 776 (9th Cir. 2009). The BIA’s denial of Petitioner’s
motion to remand is reviewed for abuse of discretion. Singh v. INS, 213 F.3d
1050, 1052 (9th Cir. 2000).
Petitioner argues that his conviction for a crime of violence aggravated
felony has a statutory counterpart in § 212(a) such that he is eligible for waiver of
removal under § 212(c). This argument fails. A crime of violence aggravated
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felony does not have a statutory counterpart in any ground for inadmissibility listed
in § 212(a). Aguilar-Ramos v. Holder, 594 F.3d 701, 706 (9th Cir. 2010) (citing
Abebe v. Mukasey, 554 F.3d 1203, 1208 n.7 (9th Cir. 2009) (en banc) (per
curiam)). Petitioner’s equal protection claims also fail. These arguments were
presented in, and are now foreclosed by, Komarenko v. INS, 35 F.3d 432, 434-35
(9th Cir. 1994); see also Abebe, 554 F.3d at 1207.
Finally, Petitioner challenges the BIA’s refusal to remand to allow the IJ to
consider an application for adjustment of status. Under certain circumstances,
aliens effectively can avoid removal if they apply for adjustment of status in
conjunction with a § 212(c) waiver of inadmissibility. United States v. Moriel-
Luna, 585 F.3d 1191, 1196-97 (9th Cir. 2009). Petitioner, however, is not eligible
for adjustment of status because an immigrant visa is not “immediately available to
him.” INA § 245(a), 8 U.S.C. § 1255(a). Although Petitioner’s mother, a United
States citizen, filed a visa petition on his behalf in 2007, the BIA noted that as of
July 2008, the priority date for a family-based first-preference visa from Mexico
was July 22, 1992. See Moriel-Luna, 585 F.3d at 1198. Therefore, the BIA did
not abuse its discretion when it refused to remand because Petitioner is not eligible
for adjustment of status.
Accordingly, the petition for review is DENIED.
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