Melgar v. Mukasey

Filing 920080930


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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 05-60690 Summary Calendar September 30, 2008 Charles R. Fulbruge III Clerk JORGE ALBERTO MELGAR Petitioner v. MICHAEL B MUKASEY, U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A28 582 864 Before DAVIS, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Jorge Alberto Melgar appeals a Board of Immigration Appeals (BIA) decision finding him ineligible to apply for relief under former 212(c) of the Immigration and Nationality Act (INA), former 8 U.S.C. 1182(c). Melgar conceded that his conviction for indecency with a child rendered him deportable on two grounds, for his having committed a crime involving moral turpitude and for his having committed an aggravated felony. See 8 U.S.C. 1227(a)(2)(A)(i), (iii). Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * No. 05-60690 Melgar's challenges to the BIA's determination are foreclosed by our decisions in Vo v. Gonzales, 482 F.3d 363, 367-68 (5th Cir. 2007), and Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007). His petition for review is thus DENIED in part. The BIA had authority to issue an order of removal; however, Melgar should be granted an opportunity to apply for an adjustment of status before the Immigration Judge, as he reasonably relied on the Immigration Judge's grant of 212(c) relief. See Avilez-Granados, 481 F.3d at 872-73. The petition is thus GRANTED in part and the case is REMANDED for further proceedings. 2

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