                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 02 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ADILSO ISMAEL JOVEL, a.k.a. Jose                  No. 09-71919
Carlos,
                                                  Agency No. A076-859-268
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

       Adilso Ismael Jovel, a native and citizen of El Salvador, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) removal order. We have jurisdiction under




          *
             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).
8 U.S.C. § 1252. We review de novo questions of law, Barrios v. Holder, 581 F.3d

849, 854 (9th Cir. 2009), and we grant the petition for review.

      The BIA erred in determining that Jovel was ineligible for a waiver of

inadmissibility under section 209(c), 8 U.S.C. § 1159(c), because he previously

adjusted his status, where Jovel was not requesting to readjust his status but to

apply for the waiver nunc pro tunc. Cf. Robleta-Pastora v. Holder, 591 F.3d 1051,

1059-60 (9th Cir. 2010) (no readjustment of status with a section 209(c) waiver

where he became inadmissible subsequent to his initial adjustment). At the time

United States Citizenship and Immigration Services approved Jovel’s adjustment

of status application, he was already inadmissible under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) and therefore needed a section 209(c) waiver to adjust.

Because it is unclear whether he was ever afforded an opportunity to apply for the

waiver, the IJ should have informed him of his potential eligibility for such a

waiver nunc pro tunc and explored the issue with him. See United States v.

Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Because neither the BIA nor the IJ

addressed the availability of this type of nunc pro tunc relief, we remand for the a

determination of whether the agency may retroactively grant Jovel a section 209(c)

waiver nunc pro tunc.




                                           2                                      09-71919
In light of our disposition, we do not reach Jovel’s remaining contentions.

PETITION FOR REVIEW GRANTED; REMANDED.




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