                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                          OCT 13 2015

                                                                       MOLLY C. DWYER, CLERK
JORGE MARIO MOSCOSO-                             No. 12-72693            U.S. COURT OF APPEALS

CASTELLANOS,
                                                 Agency No. A095-663-275
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted September 3, 2015**
                                Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.

      Jorge Mario Moscoso-Castellanos, a native and citizen of Guatemala,

petitions for review of an adverse decision of the Board of Immigration Appeals

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
            The Honorable John R. Tunheim, Chief United District Judge for the
District of Minnesota, sitting by designation.
("BIA"). We review de novo the BIA’s legal determinations and for substantial

evidence the BIA’s factual determinations. Khudaverdyan v. Holder, 778 F.3d

1101, 1105 (9th Cir. 2015). We dismiss the petition in part and deny it in part.

      1. As explained in the published opinion filed this date, the BIA properly

ruled that Petitioner failed to demonstrate 10 years of continuous physical

presence. Thus, he is statutorily ineligible for cancellation of removal.

      2. The BIA properly found Petitioner statutorily ineligible to adjust his

status to that of lawful permanent resident on the basis of his wife’s purported

eligibility to adjust her status through an approved labor certification. Petitioner’s

lawyer conceded to the immigration judge ("IJ") that the labor certification

application on which Petitioner relies originally was filed to benefit another

employee, and the only document in the record connecting Petitioner’s wife to the

application was filed in 2005. Petitioner’s wife (and, through her, Petitioner) thus

cannot benefit from the priority date of that application because a federal

regulation limits the benefit of a "grandfathered" priority date under 8 C.F.R.

§ 245.10(a)(3) to the person "who was the beneficiary of the application for the

labor certification on or before April 30, 2001," id. § 1245.10(j).

      3. The BIA properly ruled that the IJ did not have to explain to Petitioner

that he might be eligible for asylum relief or protection under the Convention


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Against Torture. In 11 immigration hearings over a period of several years,

Petitioner—who was represented by counsel at each of the hearings—never

expressed any fear whatsoever of returning to Guatemala. Petitioner therefore

showed no "apparent eligibility" for these forms of relief. Valencia v. Mukasey,

548 F.3d 1261, 1262 (9th Cir. 2008).

      4. Issues pertaining to Petitioner’s request for prosecutorial discretion are

unexhausted, so we lack jurisdiction to consider them. 8 U.S.C. § 1252(d)(1); see

also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (holding

that we lack discretion to review discretionary, quasi-prosecutorial decisions to

adjudicate cases).

      Petition DISMISSED in part and DENIED in part.




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