     Case: 11-60798     Document: 00512041373         Page: 1     Date Filed: 11/02/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 2, 2012
                                     No. 11-60798
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JORGE PONCE,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A086 970 453


Before DeMOSS, PRADO, and OWENS, Circuit Judges.
PER CURIAM:*
        Jorge Ponce, a native and citizen of Mexico, has filed a petition for review
of a Board of Immigration Appeals (BIA) order dismissing his appeal of the
denial of his application of adjustment of status, pursuant to Immigration and
Nationality Act (INA), INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), and
the denial of his application for cancellation of removal for certain non-
permanent residents, pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b). Ponce
argues that he is eligible for adjustment of status despite the permanent bar to

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60798    Document: 00512041373      Page: 2    Date Filed: 11/02/2012

                                  No. 11-60798

admissibility of § 1182(a)(9)(C)(i)(I) because 10 years have elapsed since his prior
departure from the U.S., and he therefore qualifies for an exception pursuant to
§ 1182(a)(9)(C)(ii). He also argues that this court should remand this case to the
BIA, because he is now eligible for a grant of nunc pro tunc permission to
reapply for admission because 10 years have now elapsed from his prior
departure. Finally, Ponce argues that Mortera-Cruz v. Gonzalez, 409 F.3d 246
(5th Cir. 2005), was wrongly decided.
      Ponce did not argue to the BIA, as he does before this court, that the
accrual of 10 years since his last departure from the U.S. made him eligible for
an exception to the bar of inadmissibility. He also did not argue to the BIA, as
he does before this court, that the accrual of 10 years makes him eligible for a
grant of nunc pro tunc permission to reapply for admission. As Ponce did not
make these arguments in his direct appeal to the BIA, in a motion to reopen, or
in a motion for reconsideration, he has failed to exhaust these issues, and this
court lacks jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1); Omari v.
Holder, 562 F.3d 314, 320-21 (5th Cir. 2009); Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004).
      Ponce seeks to preserve appellate review of whether Mortera-Cruz was
wrongly decided. Ponce challenged the holding in Mortera-Cruz in his appeal to
the BIA and therefore he exhausted this issue. Because the Supreme Court has
issued no intervening precedent, and this court has not reconsidered the issue
en banc, Mortera-Cruz remains the law of this circuit. See Burge v. Parish of St.
Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
      PETITION DENIED.




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