NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA DAYSI CARDELLA, AKA Ana No. 14-71834
Daysi Brcenas-Anaya,
Agency No. A028-758-687
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 5, 2017**
Pasadena, California
Before: MOTZ,*** M. SMITH, and NGUYEN, Circuit Judges.
Ana Daysi Cardella, a citizen of El Salvador, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
*
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).
***
The Honorable Diana Gribbon Motz, United States Circuit Judge for
the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
dismissal of her application for adjustment of status for lack of jurisdiction. We
have jurisdiction under 8 U.S.C. § 1252. Because an agency’s determination of its
jurisdiction is a question of law, we review de novo. See Reynoso-Cisneros v.
Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007). For the reasons that follow, we
deny Cardella’s petition for review.
1. 8 C.F.R. § 245.2(a)(1) provides that United States Citizenship and
Immigration Services (“USCIS”) has jurisdiction over applications for status
adjustment filed by “any alien, unless the immigration judge has jurisdiction.” In
turn, 8 C.F.R. § 1245.2(a)(1)(ii) specifies that when an arriving alien is placed in
removal proceedings, an IJ lacks jurisdiction unless four requirements are met.
Cardella argues that this latter regulation violates 8 U.S.C. § 1255(a). We
disagree.
8 U.S.C. § 1255(a) provides that an alien who is “inspected and admitted or
paroled” into the United States “may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe,” to the status of a
permanent resident. In Bona v. Gonzales, this court invalidated a prior regulation
that barred any “‘arriving alien’ . . . in removal proceedings” from applying for
adjustment. 425 F.3d 663, 670–71 (9th Cir. 2005). Bona explained that § 1255(a)
“did not delegate to the Attorney General the discretion to choose who was eligible
to apply for” adjustment of status. Id. at 670 (first emphasis added). Cardella
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argues that like the regulation invalidated in Bona, 8 C.F.R. §1245.2(a)(1) directly
conflicts with the statute. We disagree. Unlike the regulations invalidated in
Bona, the current regulations do not limit who may apply for adjustment; they
merely specify how eligible individuals may apply for adjustment—by applying
either to USCIS or to an IJ, depending on the circumstances. Merely “regulating
the manner in which . . . applications shall be made” is within the authority granted
to the Attorney General by § 1255(a). See Bona, 425 F.3d at 670. For that reason,
§ 1245.2(a)(1) is a valid regulation and does not conflict with § 1255(a). We note
that the Sixth and Eleventh Circuits have so held. See Scheerer v. U.S. Att’y Gen.,
513 F.3d 1244, 1251 (11th Cir. 2008) (“8 C.F.R. § 1245.2(a)(1) reflects a
reasonable construction of the statute’s delegation of authority to the Attorney
General.”); Gazeli v. Session, 856 F.3d 1101, 1108 (6th Cir. 2017) (“[T]he
regulation is an appropriate exercise of the Attorney General’s authority to
implement the INA.”).
2. The BIA correctly held that the IJ lacked jurisdiction over Cardella’s
application for adjustment because she did not meet all the applicable requirements
of 8 C.F.R. § 1245.2(a)(1). As an arriving alien placed in removal proceedings,
Cardella must have “departed from and returned to the United States pursuant to
the terms of a grant of advance parole to pursue the previously filed application for
adjustment of status.” 8 C.F.R. § 1245.2(a)(1)(ii)(B). Cardella does not dispute
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that she neither left the United States after submitting her adjustment application to
USCIS, nor returned upon a grant of advance parole. Accordingly, under
§ 1245.2(a)(1), the IJ lacked jurisdiction over Cardella’s application for
adjustment.
PETITION DENIED.
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