           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 2, 2009

                                     No. 08-60931                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GUSTAVO DELFIN PEREZ,

                                                   Petitioner
v.

ERIC H. HOLDER, JR, U.S. ATTORNEY GENERAL,

                                                   Respondent




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                      A23 237 487


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Gustavo Delfin Perez petitions for review of the Board of
Immigration Appeals’s (“BIA”) order upholding the immigration judge’s (“IJ”)
decision that Petitioner was ineligible for a waiver of inadmissibility pursuant
to former § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1182(c) (repealed 1996). For the following reasons, the petition is DENIED.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                No. 08-60931

1.   Petitioner first argues that the IJ failed to properly assess the evidence
     showing Petitioner relied on § 212(c) in deciding to proceed to trial.
     However, this court lacks jurisdiction to review the IJ’s factual findings,
     and is limited in its review to constitutional claims and questions of law.
     See 8 U.S.C. § 1252(a)(2)(C)-(D); Larin-Ulloa v. Gonzalez, 462 F.3d 456,
     460-61 (5th Cir. 2006). Moreover, the evidence supports the IJ’s finding.
2.   Petitioner further argues that the immigration judge failed to reopen the
     proceedings for further evidence in light of this circuit’s decision in
     Carranza-De Salinas v. Gonzales, 477 F.3d 200 (5th Cir. 2007). However,
     Petitioner was provided adequate opportunity to present evidence and
     develop the record regarding his § 212(c) claim before the IJ issued his
     decision, and Petitioner never requested the opportunity to present
     additional evidence before appeal.        Moreover, Petitioner’s counsel
     specifically argued the theory of § 212(c) reliance, and the IJ’s decision
     cited to and reviewed the facts of the instant case in light of Carranza-De
     Salinas when determining that Petitioner was ineligible for relief.
3.   Petitioner further argues that he is eligible for § 212(c) relief nunc pro
     tunc for his prior entries while in inadmissible status. However, the BIA
     correctly concluded that it does not have the authority to initiate removal
     proceedings in order to charge Petitioner with removal nunc pro tunc so
     it may then grant him relief nunc pro tunc.
4.   Ultimately, the IJ found that after a review of all the evidence, Petitioner
     did not become aware of § 212(c) until after its repeal. Petitioner has
     therefore failed to demonstrate actual detrimental reliance on former
     § 212(c), thus failing to establish eligibility for relief. See Carranza-De
     Salinas, 477 F.3d at 206-10; Hernandez-Castillo v. Moore, 436 F.3d 516,
     520 (5th Cir. 2007); see also INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct.
     2271, 2293 (2001). Accordingly, Petitioner’s assignments of error fail.

                                       2
                   No. 08-60931

PETITION DENIED.




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