Hernandez-Morales v. Holder , 473 F. App'x 771 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NESTOR PAUL HERNANDEZ- No. 07-72198
MORALES,
Agency No. A074-319-906
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2012**
Pasadena, California
Before: KOZINSKI, Chief Judge, TROTT and THOMAS, Circuit Judges.
1. The Board of Immigration Appeals (“BIA”) did not err in finding that
Hernandez was statutorily ineligible for an adjustment of status under 8 U.S.C.
§ 1255. Because Hernandez entered the United States illegally, he does not meet
*
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).
the requirement of § 1255(a) that an alien be “inspected and admitted or paroled”
into the country. Hernandez does not otherwise qualify as having been
“grandfathered” into the statute. See 8 C.F.R. § 1245.10; Landin-Molina v.
Holder, 580 F.3d 913, 915-17 (9th Cir. 2009).
2. Hernandez was also not eligible for nunc pro tunc permission to
reapply for admission. Because Hernandez illegally returned to the United States
and remained in the country after having been deported, the BIA properly
concluded that he was among a class of “illegal entrants” who were “inadmissible
for being present without admission or parole.” 8 U.S.C. § 1182(a)(6)(A).
3. The BIA did not err in finding Hernandez had failed to establish
extraordinary circumstances excusing his untimely filing as required by 8 U.S.C. §
1158(a)(2)(D). The failure of the border officials to refer him to an asylum officer
or immigration judge in 2007, two years before his most recent reentry, does not
rise to the level of an extraordinary circumstance.
Similarly, the officers’ actions did not constitute affirmative misconduct
which would subject the government to equitable estoppel. Hernandez must show
more than official negligence, and nothing in the record suggests the officers
engaged in a “deliberate lie” or “pattern of false promises.” See Socop-Gonzalez v.
INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc).
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4. We lack jurisdiction to consider Hernandez’s contention that the
immigration judge violated his right to due process and confrontation of witnesses.
Hernandez’s counsel waived the claim before the IJ and also failed to exhaust the
issue before the BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
PETITION DENIED.
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