                                                                  FILED
                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS       Tenth Circuit

                              FOR THE TENTH CIRCUIT                     August 14, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SERGIO GIRARD-LARA,

              Petitioner,

v.                                                          No. 12-9591
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

              Respondent.


                              ORDER AND JUDGMENT*


Before HOLMES, HOLLOWAY, and BACHARACH, Circuit Judges.


       The Petitioner, Mr. Sergio Girard-Lara, is a Mexican citizen who was

removable and ordered to appear at a removal proceeding. He requested adjustment

of his status, but the agency denied relief for two reasons: (1) Mr. Girard-Lara was

ineligible; and (2) adjustment of status was unwarranted as a matter of discretion.

We have jurisdiction to address the agency’s decision on eligibility, but not its

further denial of relief on discretionary grounds. Thus, we dismiss the petition for

lack of jurisdiction.1

*
      The parties have waived oral argument; accordingly, the Court has decided the
appeal based on the briefs.
1
       This order and judgment is not precedential. See Tenth Cir. R. 32.1(A).
                              THE AGENCY DECISION

       In determining that Mr. Girard-Lara was ineligible for adjustment of status, the

Immigration Judge relied on a California conviction for drug offenses. The

Immigration Judge added in the alternative that he would have denied adjustment of

status as a matter of discretion even if Mr. Girard-Lara had been eligible. Agreeing

with both reasons, the Board of Immigration Appeals dismissed the administrative

appeal.

                              LACK OF JURISDICTION

       In the subsequent appeal to our court, Mr. Girard-Lara argues that the

Immigration Judge and the Board of Immigration Appeals erred in finding that he

was ineligible for adjustment of status. According to Mr. Girard-Lara, the

Immigration Judge and Board erred in finding that a deferred entry of judgment

under California Penal Code § 1000 is a conviction for immigration purposes.

Appellant’s Opening Br. at 5. But Mr. Girard-Lara is not challenging the agency’s

additional rationale: that it should disallow adjustment of status as a matter of

discretion. Mr. Girard-Lara even points out that “if this Court were to hold that [he]

is statutorily eligible, [he] would still be denied on discretion.” Id. at 2 n.2.

       To determine whether we have jurisdiction, we examine the decision of the

Board of Immigration Appeals rather than the Immigration Judge. See Kechkar v.

Gonzales, 500 F.3d 1080, 1083 (10th Cir. 2007). The Board provided two reasons

for dismissing the appeal: Mr. Girard-Lara was ineligible, and the agency should


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deny adjustment of status as a matter of discretion. The resulting issue is whether we

have jurisdiction to address both rationales. If we lack jurisdiction over either

rationale, we must dismiss the appeal.2

      We lack jurisdiction over the Board’s second rationale (agency discretion).

See 8 U.S.C. § 1252(a)(2)(B)(i); Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1115

(10th Cir. 2012); see also Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir.

2005) (holding that we lack jurisdiction to review a denial of adjustment of status as

a discretionary matter).

      Discretionary decisions are reviewable when they are based on a question of

law, such as eligibility for an adjustment of status. See 8 U.S.C. § 1252(a)(2)(D);

Kechkar, 500 F.3d at 1084. As a result, we must consider the possibility of a


2
      We have explained that jurisdiction is lacking when an immigration judge
denies adjustment of status for two reasons and one of them involves discretionary
considerations:

             We recognize that one of the grounds relied upon by the
      [Immigration Judge to deny adjustment of status] was not
      discretionary—the denial based on Petitioner’s having falsely claimed
      citizenship. But if there are two alternative grounds for a decision and
      we lack jurisdiction to review one, it would be beyond our Article III
      judicial power to review the other. Absent authority to review the
      discretionary ground, any opinion of ours reviewing the
      nondiscretionary ground could not affect the final order’s validity and
      so would be advisory only. . . . There is no contention in this case that
      the [Immigration Judge’s] decision on the nondiscretionary issue
      affected his exercise of discretion.

Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005).


                                          -3-
different outcome in the agency if it had found Mr. Girard-Lara eligible for

adjustment of status. That possibility is absent here.

      When the Board of Immigration Appeals confronted the administrative appeal,

the Immigration Judge had already noted the dismissal of the drug convictions. Still,

the Immigration Judge pointed to:

      ●      other convictions for driving while intoxicated and false swearing in an
             immigration matter,

      ●      Mr. Girard-Lara’s failure to take responsibility or express remorse for
             his actions, and

      ●      his failure to pay taxes.

There is no reason to believe that the agency would have made a different

discretionary decision if it had determined that Mr. Girard-Lara were eligible for

adjustment of status. As a result, the agency’s discretionary decision did not rest on

an issue of law.

                                    CONCLUSION

      The agency’s decision on eligibility did not affect its exercise of discretion. In

these circumstances, we lack jurisdiction and dismiss the petition.


                                                Entered for the Court



                                                Robert E. Bacharach
                                                Circuit Judge




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