                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             AUG 31 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROGELIO ALCANTAR HERNANDEZ,                      No.   13-70037

              Petitioner,                        Agency No. A087-130-996

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                            Submitted August 29, 2017**
                               Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
      Rogelio Alcantar Hernandez (“Alcantar”), a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (“BIA”) decision

affirming the immigration judge’s (“IJ”) denial of his application for adjustment of

status. Because the BIA conducted a de novo review, “our review ‘is limited to the

BIA’s decision, except to the extent the IJ’s opinion [was] expressly adopted.’”

Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia

v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We have jurisdiction pursuant to 8

U.S.C. § 1252, and we deny Alcantar’s petition.

      1. Alcantar conceded his inadmissibility under Immigration and

Naturalization Act (“INA”) § 212(a)(9)(C)(i)(I). Therefore, the BIA properly

determined that Alcantar is ineligible for adjustment of status under INA § 245(i),

pursuant to In re Briones, 24 I. & N. Dec. 355 (BIA 2007). Alcantar applied for

adjustment of status on November 13, 2008, almost a full year after Briones was

decided. Because this is not a retroactive application of Briones, we need not

analyze retroactivity under Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328

(9th Cir. 1982). Cf. Garfias-Rodriguez v. Holder, 702 F.3d 504, 520–23 (9th Cir.

2012) (en banc) (because Garfias applied for adjustment under INA § 245(i) five

years before the BIA issued Briones, we analyzed whether applying Briones was

impermissibly retroactive under Montgomery Ward).


                                          2
      2. We lack jurisdiction to determine whether the IJ violated Alcantar’s due

process rights by not assessing whether he was eligible for voluntary departure.

Because Alcantar failed to raise this issue before the BIA, we are barred, for lack

of subject matter jurisdiction, from reaching it. Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004).

      3. The BIA adequately articulated its reasons for denying Alcantar’s appeal,

and thus satisfied the requirements of due process. The BIA explained that

Alcantar was ineligible for adjustment of status pursuant to Briones and our

decision in Garfias-Rodriguez because he had conceded inadmissibility under

section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act. Alcantar’s

appeal involved a pure legal issue, and the BIA explained the law governing its

decision. See Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2015) (en banc)

(holding that due process requires the BIA to “provide a reasoned explanation for

its actions . . . . [and] a minimum degree of clarity in dispositive reasoning and in

the treatment of a properly raised argument” (internal quotation marks omitted)).

      PETITION DENIED.




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