                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 28, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JOSE GUADALUPE CASILLAS-
CASILLAS, a/k/a Jose Casillas-Guadalupe,
a/k/a Roman Saprisa,

      Petitioner,

v.                                                           No. 14-9611
                                                         (Petition for Review)
LORETTA LYNCH, United States
Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
                  _________________________________

       Jose Guadalupe Casillas-Casillas, a native and citizen of Mexico, seeks review

of a Board of Immigration Appeals’ (BIA) decision concluding that he is ineligible

for adjustment of status and refusing to reinstate his period of voluntary departure.

For the reasons that follow, we deny the petition in part and dismiss it in part for lack

of jurisdiction.


       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I.

      Mr. Casillas-Casillas is a Mexican national who has spent the majority of his

life in the United States illegally. He first came to this country when he was three

and voluntarily departed at the age of fifteen. He twice more attempted to reenter at

the age of sixteen but was apprehended both times by U.S. border patrol and was

allowed to voluntarily return to Mexico. Most recently, he illegally reentered the

United States at the age of seventeen. Two years later, he encountered immigration

officials at a jail in Denver, Colorado.

      The government subsequently charged Mr. Casillas-Casillas with being

unlawfully present in the United States without having been admitted or paroled. See

8 U.S.C. § 1182(a)(6)(A)(i). He conceded the charge but applied for adjustment of

status. See id. § 1255(i). An immigration judge (IJ) held a hearing but denied the

application, ruling that Mr. Casillas-Casillas was ineligible for relief because he had

been unlawfully present in the U.S. for an aggregate period of more than one year

and had subsequently reentered without proper admission. See id.

§ 1182(a)(9)(C)(i)(I). Mr. Casillas-Casillas argued that his unlawful presence should

be excused because he was a minor at all relevant times, see id.

§ 1182(a)(9)(B)(iii)(I), but the IJ rejected his argument, pretermitted the application,

and granted voluntary departure.

      The BIA adopted the IJ’s decision, explaining that Mr. Casillas-Casillas was

ineligible for adjustment of status under § 1182(a)(9)(C)(i)(I) and the statutory

exception for minors that he invoked, § 1182(a)(9)(B)(iii)(I), did not extend to aliens

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like him who are unlawfully present in the United States after previous immigration

violations. Consequently, the BIA ordered Mr. Casillas-Casillas removed to Mexico

and refused to reinstate his period of voluntary departure because he failed to pay his

departure bond.

                                           II.

      Now in his petition for review, Mr. Casillas-Casillas challenges the BIA’s

legal conclusion that he was ineligible for adjustment of status because he was

inadmissible under § 1182(a)(9)(C)(i)(I). That provision, which is entitled, “Aliens

unlawfully present after previous immigration violations,” states that “[a]ny alien . . .

who has been unlawfully present in the United States for an aggregate period of more

than 1 year . . . and who enters or attempts to reenter the United States without being

admitted is inadmissible.” Id. § 1182(a)(9)(C)(i)(I). Mr. Casillas-Casillas does not

dispute that he satisfies these criteria. We have held that § 1182(a)(9)(C)(i)(I)

applies to recidivist immigration violators who are ineligible for adjustment of status.

See Padilla-Caldera v. Holder, 637 F.3d 1140, 1150-52 (10th Cir. 2011). Therefore,

unless Mr. Casillas-Casillas falls under an exception to § 1182(a)(9)(C)(i)(I), the BIA

correctly determined that he is ineligible for adjustment of status.

      Mr. Casillas-Casillas insists he falls under an exception for minors contained

in a preceding statutory subsection, § 1182(a)(9)(B)(iii)(I), which is entitled, “Aliens

unlawfully present.” But as the BIA recognized, this provision is inapplicable by its

own terms. See Padilla-Caldera, 637 F.3d at 1147 (“If the intent of Congress is

clear, that is the end of the matter[.]”). The text of § 1182(a)(9)(B) states:

                                            3
      (B) Aliens unlawfully present

             (i) In general

             Any alien (other than an alien lawfully admitted for permanent
             residence) who—

                (I) was unlawfully present in the United States for a period of
                more than 180 days but less than 1 year, voluntarily departed
                the United States . . . , and again seeks admission within 3
                years of the date of such alien’s departure or removal or

                (II) has been unlawfully present in the United States for one
                year or more, and who again seeks admission within 10 years
                of the date of such alien’s departure or removal from the
                United States,

                          is inadmissible.

             (ii) Construction of unlawful presence

             For purposes of this paragraph, an alien is deemed to be
             unlawfully present in the United States if the alien is present in
             the United States after the expiration of the period of stay
             authorized by the Attorney General or is present in the United
             States without being admitted or paroled.

             (iii) Exceptions

                (I) Minors

                No period of time in which an alien is under 18 years of age
                shall be taken into account in determining the period of
                unlawful presence in the United States under clause (i).

8 U.S.C. § 1182(a)(9)(B)(iii)(I) (emphasis added).

      As the emphasized text makes clear, the exception for minors in

§ 1182(a)(9)(B)(iii)(I) applies only to calculating the period of unlawful presence

“under clause (i)”—that is, § 1182(a)(9)(B)(i). Moreover, the definition of “unlawful

presence” under § 1182(a)(9)(B)(ii) is limited to the class of aliens described in “this
                                             4
paragraph”—that is, § 1182(a)(9)(B). But nothing in the text of the statute suggests

the exception for minors extends to aliens unlawfully present under

§ 1182(a)(9)(C)(i)(I). Thus, as the BIA observed, this clear and unambiguous

language demonstrates that the exception for minors contained in

§ 1182(a)(9)(B)(iii)(I) applies to only paragraph (B) and not to paragraph (C).

       Indeed, the BIA recognized that the different subsections reflect Congress’s

intent to provide exceptions under certain circumstances to aliens who are unlawfully

present in the United States, without extending those same exceptions to other aliens

who are unlawfully present after committing previous immigration violations. In

Berrum-Garcia v. Comfort, we observed that § 1182(a)(9)(B) applies to “first-time

illegal aliens who are unlawfully in the United States without having been previously

ordered removed or departed,” while § 1182(a)(9)(C) applies to permanently

inadmissible aliens who “illegally reentered after previously being formally

removed.” 390 F.3d 1158, 1167 (10th Cir. 2004). This latter class of recidivist

immigration violators “not only entered the country without inspection, but then,

after staying for a least a year, left the country and thereafter reentered or attempted

to reenter illegally.” Padilla-Caldera, 637 F.3d at 1150; see In re Briones, 24 I. & N.

Dec. 355, 365-66 (BIA 2007) (same). Mr. Casillas-Casillas falls into this latter class

of recidivist immigration violators covered by § 1182(a)(9)(C) and may not,

therefore, avail himself of a statutory exception that by its plain terms does not apply

to him. Consequently, the BIA correctly determined he was ineligible for adjustment

of status.

                                            5
       Apart from this primary issue, Mr. Casillas-Casillas summarily asserts the BIA

refused to reinstate voluntary departure. But we lack jurisdiction to consider this

argument, which does not present a constitutional or statutory claim. See Kechkar v.

Gonzales, 500 F.3d 1080, 1083 (10th Cir. 2007).

       Accordingly, we deny in part the petition for review and dismiss it in part for

lack of jurisdiction.

                                            Entered for the Court


                                            John C. Porfilio
                                            Circuit Judge




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