                                                                            FILED
                              NOT FOR PUBLICATION                           OCT 03 2014

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



                              FOR THE NINTH CIRCUIT


JUAN CARLOS LOPEZ-AGUIAR,                         No. 10-71715

               Petitioner,                        Agency No. A098-443-036

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Juan Carlos Lopez-Aguiar, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s order denying adjustment of status. We have

jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law.


          *
             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).
Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We

deny the petition for review.

      Lopez-Aguiar contends that the agency erred in concluding that he was

inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and ineligible to adjust status

under Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007). The reasoning in

Garfias-Rodriguez controls the analysis of whether Lopez-Aguiar can avoid the

retroactive application of Briones. See Garfias-Rodriguez, 702 F.3d at 520

(holding that analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322

(9th Cir. 1982) is necessary to determine retroactive effect of Briones). Like the

petitioner in Garfias-Rodriguez, Lopez-Aguiar initially applied for adjustment of

status before Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006) was decided, and

during Lopez-Aguiar’s proceedings the tension between 8 U.S.C. § 1255(i) and

§ 1182(a)(9)(C)(i)(I) was obvious and the ambiguity in law should have given him

no assurances of his eligibility for adjustment of status. See id. at 522-23.

Although the burden of removal weighs heavily in favor of Lopez-Aguiar, the

same was true in Garfias-Rodriguez, where the court found that the interest in

maintaining uniformity in the application of immigration law leaned in favor of

retroactive application. See id. at 523. As there is no significant factual basis to

distinguish Lopez-Aguiar’s situation from the one presented in Garfias-Rodriguez


                                           2                                    10-71715
for purposes of applying Montgomery Ward, we conclude that this court’s holding

in Garfias-Rodriguez applies to Lopez-Aguiar, rendering him ineligible for

adjustment under § 1255(i).

      Finally, Lopez-Aguiar’s contention that the Attorney General exceeded his

authority in promulgating 8 C.F.R. § 1240.26(i) is foreclosed by Garfias-

Rodriguez, 702 F.3d at 525-27 (holding that the promulgation of 8 C.F.R.

§ 1240.26(i) was a proper exercise of the Attorney General’s authority).

      PETITION FOR REVIEW DENIED.




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