Alonzo Valenzuela v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 15 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ALONZO ISRAEL VALENZUELA, No. 08-73333

Petitioner, Agency No. A036-172-069

v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted February 11, 2011
Pasadena, California

Before: TASHIMA and FISHER, Circuit Judges, and WOLF, District Judge.**

Petitioner Alonzo Israel Valenzuela, a native of Mexico and a lawful

permanent resident of the United States, petitions for review of the Board of

Immigration Appeal’s (BIA) denial of relief from removal and refusal to remand

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
for consideration of an application for adjustment of status. We have jurisdiction

to under 8 U.S.C. § 1252(a) and we deny the petition.

Petitioner was ordered removed to Mexico under Immigration and

Naturalization Act (INA) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), on the

basis of a 1994 felony conviction for assault with a deadly weapon, Cal. Penal

Code § 245(a)(1). The Immigration Judge (IJ) found Petitioner ineligible for

discretionary waiver of removal under former INA § 212(c), 8 U.S.C. § 1182(c)

(repealed 1996), because the basis for his removal, a crime of violence aggravated

felony, has no comparable ground of inadmissibility in INA § 212(a), 8 U.S.C.

§ 1182(a), as required by 8 C.F.R. § 1212.3(f)(5), the “statutory counterpart” rule.

The BIA affirmed. It also rejected Petitioner’s motion to remand. This petition for

review followed.

We review questions of law and constitutional claims de novo. Khan v.

Holder, 584 F.3d 773, 776 (9th Cir. 2009). The BIA’s denial of Petitioner’s

motion to remand is reviewed for abuse of discretion. Singh v. INS, 213 F.3d

1050, 1052 (9th Cir. 2000).

Petitioner argues that his conviction for a crime of violence aggravated

felony has a statutory counterpart in § 212(a) such that he is eligible for waiver of

removal under § 212(c). This argument fails. A crime of violence aggravated

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felony does not have a statutory counterpart in any ground for inadmissibility listed

in § 212(a). Aguilar-Ramos v. Holder, 594 F.3d 701, 706 (9th Cir. 2010) (citing

Abebe v. Mukasey, 554 F.3d 1203, 1208 n.7 (9th Cir. 2009) (en banc) (per

curiam)). Petitioner’s equal protection claims also fail. These arguments were

presented in, and are now foreclosed by, Komarenko v. INS, 35 F.3d 432, 434-35

(9th Cir. 1994); see also Abebe, 554 F.3d at 1207.

Finally, Petitioner challenges the BIA’s refusal to remand to allow the IJ to

consider an application for adjustment of status. Under certain circumstances,

aliens effectively can avoid removal if they apply for adjustment of status in

conjunction with a § 212(c) waiver of inadmissibility. United States v. Moriel-

Luna, 585 F.3d 1191, 1196-97 (9th Cir. 2009). Petitioner, however, is not eligible

for adjustment of status because an immigrant visa is not “immediately available to

him.” INA § 245(a), 8 U.S.C. § 1255(a). Although Petitioner’s mother, a United

States citizen, filed a visa petition on his behalf in 2007, the BIA noted that as of

July 2008, the priority date for a family-based first-preference visa from Mexico

was July 22, 1992. See Moriel-Luna, 585 F.3d at 1198. Therefore, the BIA did

not abuse its discretion when it refused to remand because Petitioner is not eligible

for adjustment of status.

Accordingly, the petition for review is DENIED.

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