Edmund Duda v. Eric H. Holder Jr. , 515 F. App'x 690 ( 2013 )

FILED
NOT FOR PUBLICATION APR 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDMUND DUDA, No. 08-73585
Petitioner, Agency No. A027-266-245
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 16, 2013 **
San Francisco, California
Before: GOODWIN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Edmund Duda petitions for review of the decision by the Board of
Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s
denial of his application for a waiver of inadmissibility and adjustment of status.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we dismiss in part and
deny in part Duda’s petition for review.1
1. We lack jurisdiction to review the BIA’s denial of § 212(c) relief. See
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) (citing 8 U.S.C.
§ 1252(a)(2)(B)(ii)). In three separate orders, the BIA concluded that Duda did not
merit a favorable exercise of discretion, therefore he was ineligible for a § 212(c)
waiver. Duda does not challenge the BIA’s denial on any constitutional or legal
grounds. Nor does he assert that the BIA failed to balance all the favorable and
unfavorable factors when determining whether he was entitled to relief under
former § 212(c). See Zheng v. Holder, 644 F.3d 829, 833 (9th Cir. 2011). Thus,
we lack jurisdiction to reconsider the BIA’s discretionary decision to deny § 212(c)
relief. Because we lack jurisdiction, we need not address the merits of the
remaining issues related to the § 212(c) waiver raised on appeal as those issues are
moot.
2. Duda is also ineligible for adjustment of status as a refugee under 8 U.S.C.
§ 1159. Assuming exhaustion, because Duda adjusted his status to that of a legal
permanent resident, he is no longer eligible for adjustment of status as a refugee.
1
In light of the foregoing disposition, Duda’s Motion to Remand filed
March 17, 2013 is denied.
2
See Robleto-Pastora v. Holder, 591 F.3d 1051, 1059-60 (9th Cir. 2010); Matter of
S-I-K-, 24 I. & N. Dec. 324, 330 (BIA 2007).
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.
3