ABIGAIL J. ALFANO, AKA Abigail Joy Gajonera v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABIGAIL J. ALFANO, AKA Abigail Joy
Gajonera,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-70608
Agency No. A078-708-575
MEMORANDUM*
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
FILED
AUG 01 2016
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

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
14-70608 2

-- 2 of 3 --

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.
14-70608 3

-- 3 of 3 --