                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 08 2012

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



                            FOR THE NINTH CIRCUIT


NESTOR PAUL HERNANDEZ-                           No. 07-72198
MORALES,
                                                 Agency No. A074-319-906
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted June 6, 2012**
                               Pasadena, California

Before: KOZINSKI, Chief Judge, TROTT and THOMAS, Circuit Judges.

       1.    The Board of Immigration Appeals (“BIA”) did not err in finding that

Hernandez was statutorily ineligible for an adjustment of status under 8 U.S.C.

§ 1255. Because Hernandez entered the United States illegally, he does not meet


        *
             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).
the requirement of § 1255(a) that an alien be “inspected and admitted or paroled”

into the country. Hernandez does not otherwise qualify as having been

“grandfathered” into the statute. See 8 C.F.R. § 1245.10; Landin-Molina v.

Holder, 580 F.3d 913, 915-17 (9th Cir. 2009).

      2.     Hernandez was also not eligible for nunc pro tunc permission to

reapply for admission. Because Hernandez illegally returned to the United States

and remained in the country after having been deported, the BIA properly

concluded that he was among a class of “illegal entrants” who were “inadmissible

for being present without admission or parole.” 8 U.S.C. § 1182(a)(6)(A).

      3.     The BIA did not err in finding Hernandez had failed to establish

extraordinary circumstances excusing his untimely filing as required by 8 U.S.C. §

1158(a)(2)(D). The failure of the border officials to refer him to an asylum officer

or immigration judge in 2007, two years before his most recent reentry, does not

rise to the level of an extraordinary circumstance.

      Similarly, the officers’ actions did not constitute affirmative misconduct

which would subject the government to equitable estoppel. Hernandez must show

more than official negligence, and nothing in the record suggests the officers

engaged in a “deliberate lie” or “pattern of false promises.” See Socop-Gonzalez v.

INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc).


                                          2
      4.    We lack jurisdiction to consider Hernandez’s contention that the

immigration judge violated his right to due process and confrontation of witnesses.

Hernandez’s counsel waived the claim before the IJ and also failed to exhaust the

issue before the BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      PETITION DENIED.




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