Maria Valles De Mendez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION OCT 04 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA VALLES DE MENDEZ, No. 13-73385

Petitioner, Agency No. A095-670-165

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Maria Valles de Mendez, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to

reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Valles de Mendez’ motion

to reopen, where she failed to establish that her former attorney’s failure to file an

application for a waiver under 8 U.S.C. § 1182(h) (“212(h) waiver”) constituted

ineffective assistance of counsel. See Mohammed, 400 F.3d at 793 (“petitioner

must demonstrate first that counsel failed to perform with sufficient competence,

and, second, that she was prejudiced by counsel’s performance”). Valle de

Mendez contends that she was eligible for a 212(h) waiver because she was not

admitted, but rather was granted adjustment of status and, therefore, the

requirement that an applicant for a 212(h) waiver be present for seven years after

“admission” should not have barred her eligibility. However, at the time of her

proceedings, the relevant precedent conflicted with Valle de Mendez’ contention

that an adjustment of status did not qualify as an admission for the purposes of a

212(h) waiver. See, e.g., Matter of Rosas-Ramirez, 22 I. & N. Dec. 616, 623 (BIA

1999) (alien “was ‘admitted’ to the United States when her status was adjusted to

that of ‘an alien lawfully admitted for permanent residence’” because

“[a]dmissions also occur after entry through the process of adjustment of status”

(quoting 8 U.S.C. § 1255a(b))).

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 To the extent Valle de Mendez contends that a fundamental change in law,

represented by this court’s decision in Negrete-Ramirez v. Holder, 741 F.3d 1047

(9th Cir. 2014), warrants reopening of her proceedings, we lack jurisdiction over

that unexhausted contention, and note that her appropriate recourse is to file a

motion to reopen before the BIA based on a fundamental change in law. See Tijani

v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to

consider legal claims not presented in an alien’s administrative proceedings before

the agency); Matter of G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999) (the BIA may

exercise its sua sponte authority to reopen where there has been a fundamental

change in law).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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