NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-3660 _____________ RODOLFO LOPEZ-MONTESINO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A078-498-602) Immigration Judge: Hon. Charles M. Honeyman _______________ Submitted Under Third Circuit LAR 34.1(a) June 15, 2020 Before: JORDAN, MATEY, and ROTH, Circuit Judges (Filed: October 1, 2020) _______________ OPINION * _______________ * This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge. Rodolfo Lopez-Montesino petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the determination of an Immigration Judge (“IJ”) that he is ineligible for adjustment of status under 8 U.S.C. § 1255 and cancellation of removal under 8 U.S.C. § 1229b(b). Because Lopez-Montesino’s arguments are contrary to controlling precedent and the plain language of the relevant statute, we will deny the petition for review. I. BACKGROUND Lopez-Montesino is a citizen and national of El Salvador. He entered the United States in or around January of 1991, without being formally inspected or admitted. In 2001, he was granted Temporary Protected Status (“TPS”). Between March 2002 and January 2005, Lopez-Montesino was twice convicted in Pennsylvania of driving under the influence. His first conviction resulted in a sentence with a minimum of 90 days’ confinement and a maximum of 18 months’ confinement. His second resulted in a sentence with a minimum of 90 days’ confinement and a maximum of five years’ confinement. In April 2013, the Department of Homeland Security revoked Lopez-Montesino’s TPS because of his criminal convictions. Thereafter, Lopez-Montesino appeared before an IJ and sought adjustment of status under 8 U.S.C. § 1255, based on an approved visa petition filed by his United States citizen spouse. He also sought cancellation of removal under 8 U.S.C. § 1229b(b). The IJ pretermitted and denied both applications. As to Lopez-Montesino’s application for adjustment of status, the IJ found that he was in “unlawful immigration status” at the time 2 of his application, and thus was ineligible for adjustment of status under 8 U.S.C. § 1255(c). 1 (App. 13.) Regarding cancellation of removal, the IJ determined that Lopez- Montesino was ineligible for relief because “the sum of [his] sentences to confinement totaled six years and six months, which exceeds the five-year period set forth” in 8 U.S.C. § 1182(a)(2)(B). 2 (App. 15.) Lopez-Montesino appealed the IJ’s decision to the BIA, which dismissed the appeal. The BIA agreed with Lopez-Montesino that the IJ was wrong to conclude that he was ineligible for adjustment of status under 8 U.S.C. § 1255(c), but held that any error in that regard was harmless because he nevertheless was ineligible for adjustment of status under 8 U.S.C. § 1255(a).3 Specifically, the BIA reasoned that Lopez-Montesino had never been “inspected and admitted or paroled into the United States,” as required by § 1255(a), and that his ...
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