Benedicto Rollon Sustal v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENEDICTO ROLLON SUSTAL,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-72605
Agency No. A045-755-200
MEMORANDUM*
BENEDICTO ROLLON SUSTAL,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71317
Agency No. A045-755-200
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
MAR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Submitted February 6, 2015 **
Pasadena California
Before: PREGERSON and NGUYEN, Circuit Judges, and CARR, Senior District
Judge.***
Benedicto Sustal (“Sustal”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order finding
him removable. Sustal also appeals the BIA’s decision denying his motion to
reconsider. We have jurisdiction under 8 U.S.C. § 1252, and we affirm.
Sustal argues that the subsequent annulment of his marriage should be given
retroactive effect so as to cure the violation at the time he filed his visa application
and entered the United States. Our case, Hendrix v. INS, 583 F.2d 1102 (9th Cir.
1978), forecloses this claim for relief. We held in Hendrix that “we are not obliged
to give retroactive effect to annulments so as to cure a violation of law respecting
entry into the United States.” Id. at 1103 (quoting Matter of Wong, 16 I & N Dec.
87, 89 (BIA 1977)); see also Matter of Astorga, 17 I & N Dec. 1, 4 (BIA 1979)
(“[M]arriages declared void at inception, or annulled, will not relate back to cure a
ground of exclusion or deportation at the time of entry where the alien entered the
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
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United States in an immigrant status dependent on his being unmarried.”). Thus,
“[u]nless unusual circumstances dictate that in the interest of justice retroactive
effect should be given an annulment, it is the marital status at the time of entry that
should serve as the basis for one alien’s preferment over others under the quota
system.” Hendrix, 583 F.2d at 1103 (emphasis added) (internal citation omitted);
see also Matter of Magana, 17 I & N Dec. 111 (BIA 1979) (refusing to apply
relation back to cure entry fraud). No such unusual circumstances are present here.
Moreover, substantial evidence supports the IJ’s determination that Sustal
was married at the time of entry, and thus is removable as charged.
Finally, because Sustal failed “to address how the BIA abused its discretion
by denying his motion to reopen and reconsider its decision,” he has waived this
issue. Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir. 1996).
We therefore deny the petitions for review.
DENIED.
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