                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 26 2015

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



                              FOR THE NINTH CIRCUIT


XOCHITL BEATRIZ FONG DE                          No. 10-70790
BARRERA, AKA Maria Yasmin
Gonzalez-Baltierra, AKA Xochitl Beatrix          Agency No. A077-765-068
Fond De Barrera, AKA Maria Yesimi
Gonzalez Baltierro,
                                                 MEMORANDUM*
               Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted February 17, 2015**

Before:        O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.

       Xochitl Beatriz Fong de Barrera, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her 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 her application for adjustment of

status. Our jurisdiction is governed by 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 in part and dismiss in part the petition for review.

      The BIA correctly determined that Fong de Barrera is not eligible to adjust

her status because she is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) 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); Duran Gonzales v. DHS, 508 F.3d 1227, 1231, 1242 (9th Cir.

2007). Fong de Barrera’s retroactivity contention fails where she filed her

applications to adjust status and for a waiver of inadmissibility after the BIA issued

Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), and there is no

significant factual basis to distinguish Fong de Barrera’s situation from the one

presented in Carrillo de Palacios for purposes of determining the retroactive

application of Duran Gonzales. See Carrillo de Palacios, 708 F.3d at 1072.

      We lack jurisdiction to consider Fong de Barrera’s contention that the BIA

abused its discretion by not waiting to adjudicate her appeal, because she did not

request the BIA hold her case in abeyance and therefore failed to exhaust her

administrative remedies. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)


                                          2                                     10-70790
(the court lacks jurisdiction to consider legal claims not presented in an alien’s

administrative proceedings before the agency).

      Fong de Barrera’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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