FILED
NOT FOR PUBLICATION AUG 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLABIO DE JESUS D. FUENTES, AKA No. 13-71535
Flabio Fuentes,
Agency No. A094-203-396
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Flabio de Jesus D. Fuentes, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand and dismissing his appeal from an immigration judge’s order of removal.
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to remand and review de novo questions of law. Romero-Ruiz
v. Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We deny the petition for
review.
The BIA did not abuse its discretion in denying Fuentes’ motion to remand
for consideration of a waiver of inadmissibility under 8 U.S.C. § 1182(h), where
the BIA properly concluded that Fuentes was ineligible for such a waiver.
Contrary to Fuentes’ contention, he is not eligible for a stand-alone § 1182(h)
waiver because he was within the United States, not an applicant for admission,
and he did not establish that he was eligible to file a concurrent application for
adjustment of status. See Mtoched v. Lynch, 786 F.3d 1210, 1218 (9th Cir. 2015)
(deferring to the BIA’s decision in Matter of Rivas, 26 I. & N. Dec. 130, 132-35
(BIA 2013), that a § 1182(h) waiver “for an alien within the United States is
available only in connection with an application for adjustment of status”); 8
U.S.C. § 1182(h); 8 C.F.R. § 1245.1(f).
Fuentes’ contention that he was eligible for a nunc pro tunc stand-alone
waiver because he entered the United States when already inadmissible is without
merit. See Mtoched, 786 F.3d at 1218; Matter of Rivas, 26 I. & N. Dec. at 134-35
(expressly overruling BIA case law that permitted a stand-alone § 1182(h) waiver
2 13-71535
to be granted nunc pro tunc for an alien who returns to the United States when
inadmissible).
In light of this disposition, we do not reach Fuentes’ remaining contentions.
We deny Fuentes’ motion regarding a request for bond hearing as moot
(Docket Entry No. 24).
PETITION FOR REVIEW DENIED.
3 13-71535