                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-13273         ELEVENTH CIRCUIT
                                  Non-Argument Calendar       MARCH 15, 2011
                                ________________________        JOHN LEY
                                                                 CLERK
                                  Agency No. A088-010-212


LUIS CASTILLO-PADILLA,

lllllllllllllllllllll                                                        Petitioner.

                                             versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllll                                                      llRespondent.

                                ________________________

                            Petition for Review of a Decision of the
                                 Board of Immigration Appeals
                                 ________________________

                                      (March 15, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Luis Castillo-Padilla, a native and citizen of Mexico, petitions for review of
the decision that affirmed the denial of his application for adjustment of status.

8 U.S.C. § 1255(a). The Board of Immigration Appeals agreed with the finding of

the immigration judge that Castillo-Padilla had not been “paroled into the United

States” and did not qualify for an adjustment of status. 8 U.S.C. § 1182(d)(5)(A).

We deny the petition.

      In 1999, Castillo-Padilla entered the United States illegally. In 2006, the

Department of Homeland Security gave Castillo-Padilla notice that he was subject

to removal for being an alien in the United States without admission or parole.

Castillo-Padilla was arrested and detained by the Immigration and Customs

Enforcement agency. The Attorney General later released Castillo-Padilla after he

paid a bond of $12,000. When he was released, Castillo-Padilla received an I-94

Departure Record with a stamp stating that he had posted bond.

      Castillo-Padilla conceded removability, but he later applied to adjust his

residency status based on his marriage to a citizen of the United States. The

immigration judge found that Castillo-Padilla was not eligible for an adjustment of

status based on his marriage, and Castillo-Padilla agreed with that finding.

Castillo-Padilla argued that he was eligible for an adjustment of status on the

alternative ground that he had been issued an I-94 form that evidenced he had

been “paroled” into the United States.

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      The immigration judge denied Castillo-Padilla’s application for an

adjustment of status and ordered him removed from the United States. The

immigration judge found that the I-94 form that Castillo-Padilla received was “just

an indication that a bond was posted and he was released from the custody of the

Department of Homeland Security under bond.” The immigration judge reasoned

that “a release under bond” did not establish that Castillo-Padilla “had been in fact

paroled into the United States by the Department of Homeland Security, and as

such he would not be eligible for adjustment of status.”

      The Board agreed with the findings of the immigration judge and dismissed

Castillo-Padilla’s appeal. The Board stated that Castillo-Padilla had failed to

“adequately explain[] how his release from custody on a $12,000 bond constitutes

conditional parole,” but the Board found that, even if Castillo-Padilla had been

“afforded ‘conditional parole’ under section 236(a)(2)(B) of the Act,” 8 U.S.C. §

1226(a)(2)(B), that was “not the same as ‘parole into the United States’” that

would make him “eligible for adjustment of status under section 245(a),” 8 U.S.C.

§ 1255(a). The Board also found that Castillo-Padilla failed to prove that the

government intended to parole him into the United States when it issued the I-94

form because the form was stamped with the amount of the bond instead of

endorsed with the parole stamp, as required to grant parole to an alien under

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section 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). The Board agreed with the

finding of the immigration judge that “conditional parole under section

236(a)(2)(B)” was a “distinct and different procedure from parole under section

212(d)(5)(A) and that [Castillo-Padilla] [was] not eligible to adjust his status

under section 245(a) . . . on the basis of his release from custody on conditional

parole.”

      We review the decision of the Board to determine whether it is “‘supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.’” Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010) (quoting

Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001)). As a general

rule, we review questions of law de novo, but when the issue involves the

interpretation of a statute by the administering agency, we apply the deferential

two-step test articulated in Chevron, U.S.A., Inc. v. Natural Resource Defense

Council, 467 U.S. 837, 104 S. Ct. 2778 (1984). De Sandoval v. U.S. Att’y Gen.,

440 F.3d 1276, 1278 (11th Cir. 2006). The first step of the Chevron test “requires

us to determine whether ‘Congress has directly spoken to the precise question at

issue.’” Id. at 1279 (quoting Chevron, 467 U.S. at 842, 104 S. Ct. at 2781). If

Congress has not addressed the issue, or if language of the statute is ambiguous,

we proceed to the second step of the Chevron test to determine “‘whether the

                                          4
agency’s [regulation] is based on a permissible construction of the statute.’” Id.

(quoting Chevron, 467 U.S. at 843, 104 S. Ct. at 2782).

      Castillo-Padilla makes two arguments in support of his petition, but we lack

jurisdiction to consider one of those arguments. Castillo-Padilla argues that the

Board misinterpreted the laws governing parole. Castillo-Padilla also argues that

the denial of an opportunity to adjust his status violated his right to due process,

but Castillo-Padilla did not present this argument to the Board. “[A]bsent a

cognizable excuse or exception, ‘we lack jurisdiction to consider claims that have

not been raised before’” the Board. Amaya-Artunduaga v. U.S. Att’y Gen., 463

F.3d 1247, 1250 (11th Cir. 2006) (quoting Sundar v. INS, 328 F.3d 1320, 1323

(11th Cir. 2003)).

      Castillo-Padilla argues that when he was released from custody on

“conditional parole” he became eligible for an adjustment of status, but the

decision of the Board that Castillo-Padilla was ineligible is more consistent with

the language of the statute. An alien may apply for an adjustment of status if he

has been “inspected and admitted or paroled into the United States.” 8 U.S.C. §

1255(a). Congress employed the term “conditional parole” to refer to the release

of an alien subject to removal from the United States. Id. § 1226(a)(2). “As we

have previously stated, ‘when Congress uses different language in similar

                                           5
sections, it intends different meanings.’” DIRECTV, Inc. v. Brown, 371 F.3d 814,

818 (11th Cir. 2004) (quoting Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232

F.3d 854, 859 (11th Cir. 2000)). Alternatively, we conclude that the Board

reasonably decided that Castillo-Padilla’s release on conditional parole did not

make him eligible to apply for an adjustment of status for having been “paroled

into the United States,” 8 U.S.C. § 1255(a). An alien may be “paroled into the

United States” by the Attorney General temporarily if the parole would serve

“urgent humanitarian reasons” or provide a “significant public benefit,” id. §

1182(d)(5)(A), which contrasts starkly with being released on conditional parole

until immigration authorities decide if an alien should be removed from the United

States, id. § 1226(a)(2). See Delgado-Sobalvarro v. U.S. Att’y Gen., 625 F.3d

782, 786–87 (3d Cir. 2010); Ortega-Cervantes v. Gonzales, 501 F.3d 1111,

1116–20 (9th Cir. 2007).

      Castillo-Padilla’s petition for review is DENIED.




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