FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO AVALOS SEGURA,
Petitioner, No. 08-72062
v.
Agency No.
A092-184-494
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2010*
Pasadena, California
Filed May 26, 2010
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block, District Judge.**
Opinion by Judge Tallman
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
7567
AVALOS SEGURA v. HOLDER 7569
COUNSEL
Jeremy M. Clason, Yarra, Kharazi & Associates, Fresno, Cal-
ifornia, for petitioner Rogelio Avalos Segura.
7570 AVALOS SEGURA v. HOLDER
Jessica Segall, Office of Immigration Litigation, Washington,
D.C.; Tony West, Assistant Attorney General, Civil Division;
Leslie McKay, Assistant Director, Office of Immigration Liti-
gation, for respondent Attorney General Holder.
OPINION
TALLMAN, Circuit Judge:
Petitioner Rogelio Avalos Segura (“Avalos”) petitions for
review of the decision of the Board of Immigration Appeals
(“BIA”) finding him ineligible for relief under § 212(c) of the
Immigration and Nationality Act.1 The BIA reasoned that
Avalos was ineligible for the requested relief because he was
not lawfully admitted for permanent residence. We dismiss in
part and deny in part Avalos’s petition for review.
I
Avalos, a native and citizen of Mexico, entered the United
States without inspection on May 2, 1980. He received tem-
porary resident status on July 14, 1988. In late 1989, Avalos
pleaded guilty in California state court to a charge of posses-
sion or purchase of a controlled substance, a felony, and was
sentenced to 180 days incarceration and 36 months probation.
Notwithstanding this felony conviction, Avalos applied for
and obtained lawful permanent resident status on November
2, 1992. There is no indication that the Immigration and Natu-
ralization Service knew of Avalos’s conviction at the time it
approved his application for an adjustment of status.
1
Congress repealed § 212(c) of the Immigration and Nationality Act,
previously codified at 8 U.S.C. § 1182(c) (1994), when it enacted the Ille-
gal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, § 304(b), 110 Stat. 3009, 3009-597.
AVALOS SEGURA v. HOLDER 7571
After vacationing for a short time in Mexico, Avalos
attempted to re-enter the United States in October 2003. The
Bureau of Customs and Border Patrol (“BCBP”) referred
Avalos to secondary inspection, and Avalos admitted he was
convicted of a controlled substance charge in 1989. The
BCBP paroled Avalos into the United States and ordered him
to report for a deferred inspection the next month. At the
deferred inspection, the BCBP issued a Notice to Appear
charging Avalos with removability for violation of a con-
trolled substance law, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for
being a suspected controlled substance trafficker, id.
§ 1182(a)(2)(C).
Avalos appeared before an immigration judge (“IJ”) and,
through counsel, conceded the charge of removability for a
controlled substance conviction, but challenged the charge of
removability for being a controlled substance trafficker. He
then requested relief under § 212(c). The IJ granted the Gov-
ernment’s motion to pretermit Avalos’s application for relief,
finding that Avalos had not been “lawfully admitted for per-
manent residence” and that § 212(c) did not apply because he
was not a permanent resident at the time he entered his guilty
plea.2
After the IJ denied Avalos’s request, he filed two applica-
tions for cancellation of removal. One application sought can-
cellation of removal for permanent residents under 8 U.S.C.
§ 1229b(a), and the other requested cancellation of removal
for nonpermanent residents as authorized by § 1229b(b). The
IJ pretermitted the application for cancellation of removal for
a permanent resident because Avalos was never lawfully
admitted for permanent residence and he did not meet the
2
Although Congress repealed § 212(c) in 1996, relief under that section
“remains available for aliens . . . whose convictions were obtained through
plea agreements and who . . . would have been eligible for § 212(c) relief
at the time of their plea under the law then in effect.” INS v. St. Cyr, 533
U.S. 289, 326 (2001).
7572 AVALOS SEGURA v. HOLDER
continuous physical residence requirement. The IJ then denied
Avalos’s application for cancellation of removal for a nonper-
manent resident after finding he did not have the requisite
continuous physical presence and he had been convicted of a
controlled substance offense.
Avalos appealed to the BIA arguing that the IJ erred in
finding him ineligible for § 212(c) relief. He also alleged a
violation of due process stemming from the Government’s
failure to conduct a rescission hearing addressing his resi-
dency status. However, Avalos did not challenge the IJ’s deci-
sion relating to his applications for cancellation of removal.
The BIA conducted its own review of Avalos’s claims and
dismissed his appeal. The BIA affirmed the IJ’s finding that
Avalos was never lawfully admitted as a permanent resident
and concluded that Avalos had no due process rights in his
residency status because an alien mistakenly granted lawful
permanent resident status is not lawfully admitted. Avalos
filed a timely petition for review challenging the authority of
the IJ to make a determination of his residency status and the
BIA’s finding that he was ineligible for § 212(c) relief.3
II
Avalos first argues that an IJ has no authority to determine
whether an alien is a lawful permanent resident. We do not
address the merits of Avalos’s challenge, however, because
we lack subject-matter jurisdiction over this issue. We can
exercise jurisdiction over a claim only if the alien has “ex-
hausted all administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d
674, 677-78 (9th Cir. 2004). Accordingly, we are precluded
from “reaching the merits of a legal claim not presented in
administrative proceedings below.” Barron, 358 F.3d at 678.
3
Avalos did not appeal the BIA’s denial of his due process claim.
AVALOS SEGURA v. HOLDER 7573
Avalos failed to assert his challenge to the IJ’s authority in
his appeal to the BIA. He contends that the broad statements
in his Notice of Appeal and brief in support that the IJ “com-
mitted an error in law” are sufficient to put the BIA on notice
of his claim. We disagree. Nowhere in his submissions to the
BIA did Avalos reference an IJ’s ability to determine an
alien’s residency status. Instead, the filings focused on
whether Avalos was lawfully admitted for permanent resi-
dence or otherwise qualified for relief under § 212(c).
Avalos’s failure to assert this claim before the BIA deprived
it of the opportunity to address the issue and divests us of
jurisdiction to review it. See Barron, 358 F.3d at 678; see also
Abebe v. Mukasey, 554 F.3d 1203, 1207-08 (9th Cir. 2009)
(en banc).
III
[1] Avalos next challenges the BIA’s denial of relief under
§ 212(c). We conduct de novo review of “purely legal ques-
tions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir. 2002).
Because the BIA independently reviewed the evidence and
law presented in this case, our scope of review is limited to
the BIA’s decision. Hosseini v. Gonzales, 471 F.3d 953, 957
(9th Cir. 2006).
Former section 212(c) stated:
Aliens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the dis-
cretion of the Attorney General without regard to the
provisions of [§ 212(a)].
8 U.S.C. § 1182(c) (1994) (repealed 1996). We must decide
whether Avalos, at the time of his adjustment of status, was
“lawfully admitted for permanent residence.” That phrase is
7574 AVALOS SEGURA v. HOLDER
statutorily defined to mean “the status of having been lawfully
accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration
laws.” Id. § 1101(a)(20).
[2] In Monet v. INS, we held that relief under § 212(c) “re-
quires lawful admission.” 791 F.2d 752, 754 (9th Cir. 1986)
(internal quotation omitted). We agreed with the Fifth Cir-
cuit’s reasoning that “[t]he term ‘lawfully’ denotes compli-
ance with substantive legal requirements, not mere procedural
regularity.” Id. at 753 (quoting In re Longstaff, 716 F.2d
1439, 1441 (5th Cir. 1983)). Although an alien may have been
admitted for permanent residence, he has not been lawfully
admitted for permanent residence if he was precluded from
obtaining permanent resident status due to an inability to meet
the prerequisites. Id. at 755; see also Hing Sum v. Holder, No.
05-75776, 2010 WL 1630859, at *4 (9th Cir. Apr. 23, 2010)
(recognizing that an alien is ineligible for relief under
§ 212(c) if he was not actually admissible at the time he
received an adjustment of status).
[3] It is clear that Avalos was inadmissible at the time he
was admitted for permanent residence. To qualify for an
adjustment to permanent resident status, an alien must estab-
lish that he has not been convicted of a felony committed in
the United States. 8 U.S.C. § 1255a(b)(1)(C)(ii). Avalos can-
didly admitted to the IJ in 2004 that he pleaded guilty to a fel-
ony prior to completing his application for an adjustment of
status. Consequently, Avalos was incapable of fulfilling one
of the conditions necessary for obtaining permanent resident
status in 1992. Because Avalos was erroneously admitted for
permanent residence, he was not lawfully admitted for perma-
nent residence, and thus was ineligible for § 212(c) relief.
[4] Nonetheless, Avalos contends that our decision in
Monet is inapplicable to him because there is no evidence that
he fraudulently obtained his permanent resident status. We do
not read our opinion in Monet so narrowly. Although the facts
AVALOS SEGURA v. HOLDER 7575
of Monet indicate that the alien there did conceal his prior
conviction, 791 F.2d at 753, nothing in our discussion of the
alien’s eligibility for relief turned on the act of concealment.
Rather, we emphasized the necessity of actually complying
with the substantive elements of the admission requirements.
The BIA correctly summarized the holding of Monet when it
stated: “[T]he term ‘lawfully admitted for permanent resi-
dence’ [does] not apply to aliens who had obtained their per-
manent resident status by fraud, or had otherwise not been
entitled to it.” In re Koloamatangi, 23 I. & N. Dec. 548, 550
(BIA 2003).
[5] We therefore reaffirm our agreement with our sister
circuits, which have placed emphasis on the alien’s compli-
ance with the underlying requirements in addition to the
method through which the alien obtained his permanent resi-
dent status. See, e.g., De La Rosa v. U.S. Dep’t of Homeland
Sec., 489 F.3d 551, 554-55 (2d Cir. 2007); Savoury v. U.S.
Att’y Gen., 449 F.3d 1307, 1313-17 (11th Cir. 2006);
Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186-87 (8th
Cir. 2005).
[6] Due to his prior felony conviction for a controlled sub-
stance offense, Avalos was ineligible for permanent resident
status at the time he filed his application for an adjustment of
status. See 8 U.S.C. § 1255a(b)(1)(C)(ii). Therefore he was
never “lawfully admitted for permanent residence” as
required by § 212(c), notwithstanding any mistake by immi-
gration officials in granting Avalos permanent resident status.
The BIA did not err in finding Avalos ineligible for § 212(c)
relief.
IV
For the foregoing reasons, Avalos’s petition for review is
DISMISSED in part and DENIED in part.