XOCHITL BEATRIZ FONG DE BARRERA, AKA Maria Yasmin Gonzalez-Baltierra, AKA Xochitl… v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XOCHITL BEATRIZ FONG DE
BARRERA, AKA Maria Yasmin
Gonzalez-Baltierra, AKA Xochitl Beatrix
Fond De Barrera, AKA Maria Yesimi
Gonzalez Baltierro,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70790
Agency No. A077-765-068
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Xochitl Beatriz Fong de Barrera, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
FILED
FEB 26 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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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from an immigration judge’s decision denying her application for adjustment of
status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law. Carrillo de Palacios v. Holder, 708 F.3d 1066, 1069 (9th Cir.
2013). We deny in part and dismiss in part the petition for review.
The BIA correctly determined that Fong de Barrera is not eligible to adjust
her status because she is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) and
does not satisfy the requirements for the exception to inadmissibility in 8 U.S.C.
§ 1182(a)(9)(C)(ii). See 8 U.S.C. § 1255(a)(2), (i)(2)(A) (alien must be admissible
to adjust status); Duran Gonzales v. DHS, 508 F.3d 1227, 1231, 1242 (9th Cir.
2007). Fong de Barrera’s retroactivity contention fails where she filed her
applications to adjust status and for a waiver of inadmissibility after the BIA issued
Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), and there is no
significant factual basis to distinguish Fong de Barrera’s situation from the one
presented in Carrillo de Palacios for purposes of determining the retroactive
application of Duran Gonzales. See Carrillo de Palacios, 708 F.3d at 1072.
We lack jurisdiction to consider Fong de Barrera’s contention that the BIA
abused its discretion by not waiting to adjudicate her appeal, because she did not
request the BIA hold her case in abeyance and therefore failed to exhaust her
administrative remedies. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)
10-70790 2

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(the court lacks jurisdiction to consider legal claims not presented in an alien’s
administrative proceedings before the agency).
Fong de Barrera’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
10-70790 3

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