                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          APR 28 2015

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

JOSE MANUEL ACEVEDO-TOSCANO,                     No. 10-72385
AKA Daniel Calbarrio-Mesa, AKA Jose
Manuel Castro, AKA Navil Gomez, AKA              Agency No. A077-141-678
Miguel Martinez-Hernandez, AKA
Osvaldo Medina-Martinez,
                                                 MEMORANDUM*
               Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted April 22, 2015**

Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

       Jose Manuel Acevedo-Toscano, a native and citizen of Mexico, petitions for

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


          *
             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).
from an immigration judge’s decision denying his application for adjustment of

status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions

of law. Carrillo de Palacios v. Holder, 708 F.3d 1066, 1069 (9th Cir. 2013). We

deny the petition for review.

      Acevedo-Toscano has not challenged the agency’s determination that under

Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007) he is not eligible to adjust

his status because he is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) as an

alien who reentered the United States without admission following removal, and

does not satisfy the requirements for the exception to inadmissibility in 8 U.S.C.

§ 1182(a)(9)(C)(ii). See 8 U.S.C. § 1255(a)(2), (i)(2)(A) (alien must be admissible

to adjust status); see also Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011)

(issues not raised in opening brief are waived).

      Acevedo-Toscano instead contends this court erred in Duran-Gonzales in

giving deference to the BIA’s decision in Matter of Torres-Garcia, 23 I. & N. Dec.

866 (BIA 2006). We may overrule a prior decision by a three judge panel when

there is intervening higher authority that is clearly irreconcilable with the prior

decision. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).

Here, there is no such intervening authority, and we are compelled to reject




                                           2                                     10-72385
Acevedo-Toscano’s challenge to Duran Gonzles. See id.

      PETITION FOR REVIEW DENIED.




                                      3                 10-72385
