Jose Acevedo-Toscano v. Loretta E. Lynch , 600 F. App'x 591 ( 2015 )


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  •                              NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                         FILED
    FOR THE NINTH CIRCUIT                          APR 28 2015
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    JOSE MANUEL ACEVEDO-TOSCANO,                     No. 10-72385
    AKA Daniel Calbarrio-Mesa, AKA Jose
    Manuel Castro, AKA Navil Gomez, AKA              Agency No. A077-141-678
    Miguel Martinez-Hernandez, AKA
    Osvaldo Medina-Martinez,
    MEMORANDUM*
    Petitioner,
    v.
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted April 22, 2015**
    Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
    Jose Manuel Acevedo-Toscano, a native and citizen of Mexico, petitions for
    review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
    *
    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).
    from an immigration judge’s decision denying his application for adjustment of
    status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions
    of law. Carrillo de Palacios v. Holder, 
    708 F.3d 1066
    , 1069 (9th Cir. 2013). We
    deny the petition for review.
    Acevedo-Toscano has not challenged the agency’s determination that under
    Duran Gonzales v. DHS, 
    508 F.3d 1227
    (9th Cir. 2007) he is not eligible to adjust
    his status because he is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) as an
    alien who reentered the United States without admission following removal, and
    does not satisfy the requirements for the exception to inadmissibility in 8 U.S.C.
    § 1182(a)(9)(C)(ii). See 8 U.S.C. § 1255(a)(2), (i)(2)(A) (alien must be admissible
    to adjust status); see also Rizk v. Holder, 
    629 F.3d 1083
    , 1091 n.3 (9th Cir. 2011)
    (issues not raised in opening brief are waived).
    Acevedo-Toscano instead contends this court erred in Duran-Gonzales in
    giving deference to the BIA’s decision in Matter of Torres-Garcia, 23 I. & N. Dec.
    866 (BIA 2006). We may overrule a prior decision by a three judge panel when
    there is intervening higher authority that is clearly irreconcilable with the prior
    decision. See Miller v. Gammie, 
    335 F.3d 889
    , 892-93 (9th Cir. 2003) (en banc).
    Here, there is no such intervening authority, and we are compelled to reject
    2                                     10-72385
    Acevedo-Toscano’s challenge to Duran Gonzles. See 
    id. PETITION FOR
    REVIEW DENIED.
    3                 10-72385
    

Document Info

Docket Number: 10-72385

Citation Numbers: 600 F. App'x 591

Filed Date: 4/28/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023