                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        NOV 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ANA DAYSI CARDELLA, AKA Ana                     No.    14-71834
Daysi Brcenas-Anaya,
                                                Agency No. A028-758-687
                Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                              Submitted October 5, 2017**
                                 Pasadena, California

Before: MOTZ,*** M. SMITH, and NGUYEN, Circuit Judges.

      Ana Daysi Cardella, a citizen of El Salvador, seeks review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)


      *
             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 Diana Gribbon Motz, United States Circuit Judge for
the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
dismissal of her application for adjustment of status for lack of jurisdiction. We

have jurisdiction under 8 U.S.C. § 1252. Because an agency’s determination of its

jurisdiction is a question of law, we review de novo. See Reynoso-Cisneros v.

Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007). For the reasons that follow, we

deny Cardella’s petition for review.

      1.     8 C.F.R. § 245.2(a)(1) provides that United States Citizenship and

Immigration Services (“USCIS”) has jurisdiction over applications for status

adjustment filed by “any alien, unless the immigration judge has jurisdiction.” In

turn, 8 C.F.R. § 1245.2(a)(1)(ii) specifies that when an arriving alien is placed in

removal proceedings, an IJ lacks jurisdiction unless four requirements are met.

Cardella argues that this latter regulation violates 8 U.S.C. § 1255(a). We

disagree.

      8 U.S.C. § 1255(a) provides that an alien who is “inspected and admitted or

paroled” into the United States “may be adjusted by the Attorney General, in his

discretion and under such regulations as he may prescribe,” to the status of a

permanent resident. In Bona v. Gonzales, this court invalidated a prior regulation

that barred any “‘arriving alien’ . . . in removal proceedings” from applying for

adjustment. 425 F.3d 663, 670–71 (9th Cir. 2005). Bona explained that § 1255(a)

“did not delegate to the Attorney General the discretion to choose who was eligible

to apply for” adjustment of status. Id. at 670 (first emphasis added). Cardella


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argues that like the regulation invalidated in Bona, 8 C.F.R. §1245.2(a)(1) directly

conflicts with the statute. We disagree. Unlike the regulations invalidated in

Bona, the current regulations do not limit who may apply for adjustment; they

merely specify how eligible individuals may apply for adjustment—by applying

either to USCIS or to an IJ, depending on the circumstances. Merely “regulating

the manner in which . . . applications shall be made” is within the authority granted

to the Attorney General by § 1255(a). See Bona, 425 F.3d at 670. For that reason,

§ 1245.2(a)(1) is a valid regulation and does not conflict with § 1255(a). We note

that the Sixth and Eleventh Circuits have so held. See Scheerer v. U.S. Att’y Gen.,

513 F.3d 1244, 1251 (11th Cir. 2008) (“8 C.F.R. § 1245.2(a)(1) reflects a

reasonable construction of the statute’s delegation of authority to the Attorney

General.”); Gazeli v. Session, 856 F.3d 1101, 1108 (6th Cir. 2017) (“[T]he

regulation is an appropriate exercise of the Attorney General’s authority to

implement the INA.”).

      2.     The BIA correctly held that the IJ lacked jurisdiction over Cardella’s

application for adjustment because she did not meet all the applicable requirements

of 8 C.F.R. § 1245.2(a)(1). As an arriving alien placed in removal proceedings,

Cardella must have “departed from and returned to the United States pursuant to

the terms of a grant of advance parole to pursue the previously filed application for

adjustment of status.” 8 C.F.R. § 1245.2(a)(1)(ii)(B). Cardella does not dispute


                                          3
that she neither left the United States after submitting her adjustment application to

USCIS, nor returned upon a grant of advance parole. Accordingly, under

§ 1245.2(a)(1), the IJ lacked jurisdiction over Cardella’s application for

adjustment.

      PETITION DENIED.




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