NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 16 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
GILBERTO MUNOZ-DIAZ, Nos. 10-71760
11-70007
Petitioner,
Agency No. A073-391-555
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
In these consolidated petitions for review, Gilberto Munoz-Diaz, a native
and citizen of Mexico, petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an immigration judge’s decision
denying Munoz-Diaz’s application for adjustment of status and of the BIA’s
*
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).
subsequent order denying Munoz-Diaz’s motion to reopen. We have jurisdiction
under 8 U.S.C. § 1252. We review for substantial evidence adverse credibility
determinations, Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir. 2011), review de
novo questions of law, Carrillo de Palacios v. Holder, 662 F.3d 1128, 1130
(9th Cir. 2011), and review for abuse of discretion the denial of a motion to reopen,
Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1014 (9th Cir. 2008). We deny
the petitions for review.
Substantial evidence supports the BIA’s determination that Munoz-Diaz did
not testify credibly about his entry into the United States in May 2000 because his
testimony contained a significant falsehood and exhibited persistent evasiveness
and unresponsiveness. See Singh, 643 F.3d at 1181 (“An [alien] who lies to
immigration authorities casts doubt on his credibility and the rest of his story.”);
Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (“We have also upheld an
adverse credibility finding where the petitioner . . . failed to clarify her answers
despite multiple opportunities to do so.”).
Because Munoz-Diaz did not provide clear and convincing evidence that he
last entered the United States lawfully, the BIA correctly concluded that Munoz-
Diaz was inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) for entering the United
States without first having been admitted or paroled and that his inadmissibility
2 10-71760, 11-70007
rendered him statutorily ineligible for adjustment of status under 8 U.S.C.
§ 1255(a). See Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir. 2001) (“If the
alien fails to meet this burden, he is presumed to be in the United States in
violation of the law . . . .”).
The BIA also correctly concluded that Munoz-Diaz was statutorily ineligible
for adjustment of status under 8 U.S.C. § 1255(i) because he is inadmissible under
8 U.S.C. § 1182(a)(9)(C)(i)(I) for having reentered the United States without being
admitted after previously accruing more than one year of unlawful presence. See
Garfias-Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137, at *7 (9th Cir.
Oct. 19, 2012) (en banc). Munoz-Diaz’s reentry after only two months of
remaining outside of the country precludes him from qualifying for a waiver of
inadmissibility under 8 U.S.C. § 1182(a)(9)(C)(ii). See Carrillo de Palacios,
662 F.3d at 1132. The BIA did not err in retroactively applying Matter of Briones,
24 I. & N. Dec. 355, 371 (BIA 2007), to Munoz-Diaz’s case because his departure
from the United States in March 2000 under a 1999 order of voluntary departure
does not indicate reasonable reliance on preexisting law. See Garfias-Rodriguez,
2012 WL 5077137, at *14 (describing the time period for establishing reasonable
reliance on case law predating Matter of Briones). Accordingly, the BIA did not
abuse its discretion by denying Munoz-Diaz’s motion to reopen to seek adjustment
3 10-71760, 11-70007
of status in conjunction with a waiver of inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii). See Granados-Oseguera, 546 F.3d at 1016 (observing that
prima facie eligibility for relief is a prerequisite for reopening).
Finally, to the extent Munoz-Diaz now challenges the validity of the 1999
order of voluntary departure, this claim is not properly before us. See Carrillo de
Palacios, 662 F.3d at 1131-32 (“[A]n alien cannot collaterally attack an earlier
exclusion or deportation at a subsequent deportation hearing, in the absence of a
gross miscarriage of justice at the prior proceeding.” (quotation marks and internal
citation omitted)).
We deny as moot Munoz-Diaz’s motion to stay these proceedings.
PETITIONS FOR REVIEW DENIED.
4 10-71760, 11-70007