                                                                            FILED
                             NOT FOR PUBLICATION                             AUG 01 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ABIGAIL J. ALFANO, AKA Abigail Joy               No. 14-70608
Gajonera,
                                                 Agency No. A078-708-575
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Abigail J. Alfano, a native and citizen of the Philippines, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judges’ order denying her application for a waiver of inadmissibility

under 8 U.S.C. § 1182(h). Our jurisdiction is governed by 8 U.S.C. § 1252. We

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo questions of law and constitutional claims. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in

part the petition for review.

      The agency did not err in denying Alfano’s application for a waiver under 8

U.S.C. § 1182(h), where Alfano was not an arriving alien seeking admission in

removal proceedings and was not eligible for adjustment of status. See Mtoched v.

Lynch, 786 F.3d 1210, 1217-18 (9th Cir. 2015) (deferring to 8 C.F.R. § 1245.1(f),

which limits a § 1182(h) waiver to those “applying or reapplying for a visa, for

admission to the United States, or for adjustment of status,” and deferring to the

BIA’s decision in Matter of Rivas, 26 I. & N. Dec. 130, 132-35 (BIA 2013), that a

§ 1182(h) waiver is not available on a “stand alone” basis for deportable aliens in

removal proceedings).

      Alfano contends that she should have been treated as an applicant for

admission because she departed the United States and was granted admission upon

re-entry, after she committed the offense that rendered her removable. This

argument is without merit, where she had not yet been convicted and did not admit

her offense at the time of her re-entry and, therefore, the Department of Homeland

Security would have had no basis to charge her as inadmissible upon re-entry. See

8 U.S.C. § 1182(a)(2)(A)(i)(I) (“[A]ny alien convicted of, or who admits having


                                          2                                    14-70608
committed, or who admits committing acts which constitute the essential elements

of . . . a crime involving moral turpitude . . . is inadmissible.”).

       As to her equal protection claim, Alfano has not adequately shown that

Congress or the agency lacked a rational basis for limiting the availability of the

“stand-alone” waiver to applicants for admission, as opposed to those seeking

relief from removal after having been admitted. See, e.g., Masnauskas v.

Gonzales, 432 F.3d 1067, 1071 (9th Cir. 2005) (“When challenged under equal

protection, line-drawing decisions made by Congress or the President in the

context of immigration and naturalization must be upheld if they are rationally

related to a legitimate government purpose.” (citation, quotation marks, and

alterations omitted)).

       Because the agency did not err in denying Alfano’s waiver application, her

contention that the denial of the waiver was a due process violation also fails. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).

       We lack jurisdiction over Alfano’s unexhausted contention that the agency

failed to comply with notice and comment rulemaking in promulgating 8 C.F.R.

§ 1245.1(f). See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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