NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURICIO MAGDALENO-MONTES, No. 09-73099
Petitioner, Agency No. A086-980-944
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted May 8, 2015**
Pasadena, California
Before: BEA and FRIEDLAND, Circuit Judges and RICE,*** District Judge.
Mauricio Magdaleno-Montes, a native and citizen of Mexico, petitions for
review of a Department of Homeland Security order reinstating his prior order of
removal, as well as the related denials of his applications for a waiver of
*
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).
***
The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
inadmissibility and for adjustment of status. We have jurisdiction pursuant to 8
U.S.C. § 1252. We deny the petition in part and dismiss in part.
U.S. Citizenship and Immigration Services properly denied
Magdaleno-Montes’s applications for a waiver of inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii) (an “I-212 waiver”) and for adjustment of status.
Magdaleno-Montes is permanently inadmissible because he was previously
removed. 8 U.S.C. § 1182(a)(9)(C)(i). Further, Magdaleno-Montes is not eligible
for an I-212 waiver because he did not remain outside the United States for more
than ten years following his last departure. See Carrillo de Palacios v. Holder, 708
F.3d 1066, 1073 & n.5 (9th Cir. 2013); see also 8 U.S.C. § 1182(a)(9)(C)(ii).
Because Magdaleno-Montes was permanently inadmissible, his ineligibility for an
I-212 waiver also made him ineligible for adjustment of status. See 8 U.S.C.
§ 1255(i)(2)(A); Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1242 (9th Cir.
2007) (“[P]laintiffs as a matter of law are not eligible to adjust their status because
they are ineligible to receive I-212 waivers.”). Thus, we deny the petition with
respect to Magdaleno-Montes’s challenge to the denials of his applications for an
I-212 waiver and adjustment of status.1
1
Because his ineligibility for an I-212 waiver was a sufficient basis for USCIS’s
denial of his applications, we need not consider Magdaleno-Montes’s challenge to
USCIS’s additional basis for its denial, relating to the reinstatement of his prior
removal order.
2
Because Magdaleno-Montes was ineligible for an I-212 waiver and
adjustment of status, the reinstatement of his prior removal order was also proper.
See Gonzales, 508 F.3d at 1231, 1242. Thus, we also deny the petition with respect
to the challenge to the reinstatement order.
We lack jurisdiction to review the agency’s exercise of prosecutorial
discretion. See 8 U.S.C. § 1252(g); Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th
Cir. 2012) (citing § 1252(g) for the proposition that “we lack jurisdiction to review
petitioners’ contention that the agency abused its discretion in denying the motion to
reopen to seek prosecutorial discretion based on the recent order of President
Obama”). Thus, we dismiss the petition with respect to Magdaleno- Montes’s
request for a remand to allow the agency to reconsider the exercise of its discretion.2
DENIED in part; DISMISSED in part.
2
Magdaleno-Montes’s motion to supplement the administrative record is
GRANTED.
3