Ore-Jimenez v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1761
ROBERTO PERCY ORE-JIMENEZ,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A76-111-412)
Submitted: April 28, 2006 Decided: May 24, 2006
Before LUTTIG,1 KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ivan Yacub, LAW OFFICE OF IVAN YACUB, Falls Church, Virginia, for
Petitioner. Peter D. Keisler, Assistant Attorney General, Leslie
McKay, Senior Litigation Counsel, Janice K. Redfern, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
1
Judge Luttig was a member of the original panel but did not
participate in this decision. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Roberto Percy Ore-Jimenez, a native and citizen of Peru,
petitions for review of an order of the Board of Immigration
Appeals (Board) affirming the immigration judge’s decision to deny
his application for adjustment of status.2 Ore-Jimenez seeks to
challenge the Board’s ruling3 by relying on the First Circuit’s
decision in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005) (finding
8 C.F.R. § 1245.1(c)(8) (2006), which provides that an arriving
alien who is in removal proceedings is ineligible to apply for
adjustment of status to that of lawful permanent resident alien,
invalid under 8 U.S.C. § 1255(a) (2000)), and other cases
construing § 1245.1(c)(8). However, the decision of the Board in
this case is based on 8 C.F.R. § 1245.2(a)(1) (2006), which applies
when an alien attempts to renew a request for adjustment of status
after a denial by the District Director.
Under § 1245.2(a)(1), Ore-Jimenez is not eligible to
reapply for adjustment of status because he has had no “earlier
inspection and admission to the United States.” See Jiang v.
Gonzales, 425 F.3d 649, 652-53 (9th Cir. 2005) (holding arriving
alien who has received advance parole is “not eligible to renew his
2
Ore-Jimenez did not appeal to the Board the immigration
judge’s finding that he was removable as charged by the former
Immigration and Naturalization Service.
3
We have jurisdiction to review the questions of law raised in
this appeal. 8 U.S.C. § 1252(a)(2)(D); Jean v. Gonzales, 433 F.3d
475, 480 (4th Cir. 2006).
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application for adjustment of status during removal proceedings”
under § 1245.2(a)(1); regulation does not violate 8 U.S.C.
§ 1255(a)).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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