Juan Lopez-Aguiar v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS LOPEZ-AGUIAR, No. 10-71715
Petitioner, Agency No. A098-443-036
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Juan Carlos Lopez-Aguiar, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order denying adjustment of status. We have
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law.
*
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).
Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We
deny the petition for review.
Lopez-Aguiar contends that the agency erred in concluding that he was
inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and ineligible to adjust status
under Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007). The reasoning in
Garfias-Rodriguez controls the analysis of whether Lopez-Aguiar can avoid the
retroactive application of Briones. See Garfias-Rodriguez, 702 F.3d at 520
(holding that analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322
(9th Cir. 1982) is necessary to determine retroactive effect of Briones). Like the
petitioner in Garfias-Rodriguez, Lopez-Aguiar initially applied for adjustment of
status before Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006) was decided, and
during Lopez-Aguiar’s proceedings the tension between 8 U.S.C. § 1255(i) and
§ 1182(a)(9)(C)(i)(I) was obvious and the ambiguity in law should have given him
no assurances of his eligibility for adjustment of status. See id. at 522-23.
Although the burden of removal weighs heavily in favor of Lopez-Aguiar, the
same was true in Garfias-Rodriguez, where the court found that the interest in
maintaining uniformity in the application of immigration law leaned in favor of
retroactive application. See id. at 523. As there is no significant factual basis to
distinguish Lopez-Aguiar’s situation from the one presented in Garfias-Rodriguez
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for purposes of applying Montgomery Ward, we conclude that this court’s holding
in Garfias-Rodriguez applies to Lopez-Aguiar, rendering him ineligible for
adjustment under § 1255(i).
Finally, Lopez-Aguiar’s contention that the Attorney General exceeded his
authority in promulgating 8 C.F.R. § 1240.26(i) is foreclosed by Garfias-
Rodriguez, 702 F.3d at 525-27 (holding that the promulgation of 8 C.F.R.
§ 1240.26(i) was a proper exercise of the Attorney General’s authority).
PETITION FOR REVIEW DENIED.
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