JOSE MANUEL ACEVEDO-TOSCANO, AKA Daniel Calbarrio-Mesa, AKA Jose Manuel Castro, AKA… v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL ACEVEDO-TOSCANO,
AKA Daniel Calbarrio-Mesa, AKA Jose
Manuel Castro, AKA Navil Gomez, AKA
Miguel Martinez-Hernandez, AKA
Osvaldo Medina-Martinez,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-72385
Agency No. A077-141-678
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Jose Manuel Acevedo-Toscano, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
FILED
APR 28 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 his application for adjustment of
status. We have jurisdiction under 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 the petition for review.
Acevedo-Toscano has not challenged the agency’s determination that under
Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007) he is not eligible to adjust
his status because he is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) as an
alien who reentered the United States without admission following removal, 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); see also Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011)
(issues not raised in opening brief are waived).
Acevedo-Toscano instead contends this court erred in Duran-Gonzales in
giving deference to the BIA’s decision in Matter of Torres-Garcia, 23 I. & N. Dec.
866 (BIA 2006). We may overrule a prior decision by a three judge panel when
there is intervening higher authority that is clearly irreconcilable with the prior
decision. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).
Here, there is no such intervening authority, and we are compelled to reject
10-72385 2

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Acevedo-Toscano’s challenge to Duran Gonzles. See id.
PETITION FOR REVIEW DENIED.
10-72385 3

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