                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          JAN 16 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

GILBERTO MUNOZ-DIAZ,                             Nos. 10-71760
                                                      11-70007
               Petitioner,
                                                 Agency No. A073-391-555
  v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       In these consolidated petitions for review, Gilberto Munoz-Diaz, a native

and citizen of Mexico, petitions for review of an order of the Board of Immigration

Appeals (“BIA”) dismissing his appeal from an immigration judge’s decision

denying Munoz-Diaz’s application for adjustment of status and of the BIA’s


          *
             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).
subsequent order denying Munoz-Diaz’s motion to reopen. We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence adverse credibility

determinations, Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir. 2011), review de

novo questions of law, Carrillo de Palacios v. Holder, 662 F.3d 1128, 1130

(9th Cir. 2011), and review for abuse of discretion the denial of a motion to reopen,

Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1014 (9th Cir. 2008). We deny

the petitions for review.

      Substantial evidence supports the BIA’s determination that Munoz-Diaz did

not testify credibly about his entry into the United States in May 2000 because his

testimony contained a significant falsehood and exhibited persistent evasiveness

and unresponsiveness. See Singh, 643 F.3d at 1181 (“An [alien] who lies to

immigration authorities casts doubt on his credibility and the rest of his story.”);

Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (“We have also upheld an

adverse credibility finding where the petitioner . . . failed to clarify her answers

despite multiple opportunities to do so.”).

      Because Munoz-Diaz did not provide clear and convincing evidence that he

last entered the United States lawfully, the BIA correctly concluded that Munoz-

Diaz was inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) for entering the United

States without first having been admitted or paroled and that his inadmissibility


                                              2                          10-71760, 11-70007
rendered him statutorily ineligible for adjustment of status under 8 U.S.C.

§ 1255(a). See Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir. 2001) (“If the

alien fails to meet this burden, he is presumed to be in the United States in

violation of the law . . . .”).

       The BIA also correctly concluded that Munoz-Diaz was statutorily ineligible

for adjustment of status under 8 U.S.C. § 1255(i) because he is inadmissible under

8 U.S.C. § 1182(a)(9)(C)(i)(I) for having reentered the United States without being

admitted after previously accruing more than one year of unlawful presence. See

Garfias-Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137, at *7 (9th Cir.

Oct. 19, 2012) (en banc). Munoz-Diaz’s reentry after only two months of

remaining outside of the country precludes him from qualifying for a waiver of

inadmissibility under 8 U.S.C. § 1182(a)(9)(C)(ii). See Carrillo de Palacios,

662 F.3d at 1132. The BIA did not err in retroactively applying Matter of Briones,

24 I. & N. Dec. 355, 371 (BIA 2007), to Munoz-Diaz’s case because his departure

from the United States in March 2000 under a 1999 order of voluntary departure

does not indicate reasonable reliance on preexisting law. See Garfias-Rodriguez,

2012 WL 5077137, at *14 (describing the time period for establishing reasonable

reliance on case law predating Matter of Briones). Accordingly, the BIA did not

abuse its discretion by denying Munoz-Diaz’s motion to reopen to seek adjustment


                                           3                            10-71760, 11-70007
of status in conjunction with a waiver of inadmissibility under 8 U.S.C.

§ 1182(a)(9)(C)(ii). See Granados-Oseguera, 546 F.3d at 1016 (observing that

prima facie eligibility for relief is a prerequisite for reopening).

      Finally, to the extent Munoz-Diaz now challenges the validity of the 1999

order of voluntary departure, this claim is not properly before us. See Carrillo de

Palacios, 662 F.3d at 1131-32 (“[A]n alien cannot collaterally attack an earlier

exclusion or deportation at a subsequent deportation hearing, in the absence of a

gross miscarriage of justice at the prior proceeding.” (quotation marks and internal

citation omitted)).

      We deny as moot Munoz-Diaz’s motion to stay these proceedings.

      PETITIONS FOR REVIEW DENIED.




                                            4                          10-71760, 11-70007
