Opinion
No. 10-71715
10-03-2014
JUAN CARLOS LOPEZ-AGUIAR, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A098-443-036 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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. 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 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.