NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS DOUGLAS R. VILLALOBOS, No. 17-72891 Petitioner, Agency No. A091-508-843 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 10, 2020 Pasadena, California Before: WATFORD, THAPAR,** and COLLINS, Circuit Judges. Petitioner Douglas Villalobos, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) reversing an order of an Immigration Judge (“IJ”) granting his application for adjustment of status under § 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i). The BIA held that, because Villalobos did not merit a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h), he was not entitled to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. adjustment of status. We conclude that we lack jurisdiction over a dispositive issue in this case, and we therefore dismiss the petition. To obtain a waiver of inadmissibility under § 212(h), an alien generally must satisfy one of the alternative threshold statutory criteria in § 212(h)(1) and then must show that he or she warrants a favorable exercise of discretion under § 212(h)(2). See 8 U.S.C. § 1182(h). Before the BIA, Villalobos contended that he was eligible for a waiver under both § 212(h)(1)(A) (based on rehabilitation after a conviction that is more than 15 years old), and § 212(h)(1)(B) (based on extreme hardship to certain U.S. family members). See id. § 1182(h)(1)(A), (B).1 By regulation, the BIA “will not favorably exercise discretion under section 212(h)(2)” with respect to aliens convicted of “violent or dangerous crimes,” except in certain specified “extraordinary circumstances,” such as “exceptional and extremely unusual hardship.” 8 C.F.R. § 1212.7(d). But even if such extraordinary circumstances are shown, that “might still be insufficient” to merit an ultimate “favorable exercise of discretion under section 212(h)(2).” Id. In exercising that discretion, the agency “must balance the adverse factors evidencing 1 The BIA’s order did not mention Villalobos’s invocation of § 212(h)(1)(A) and instead appeared to assume that only § 212(h)(1)(B) is at issue. Although Villalobos’s opening brief did not assert that the BIA had erred in failing to mention § 212(h)(1)(A), we need not decide whether Villalobos thereby waived the point. We perceive no basis in the record for concluding that this point made any difference to the BIA’s ultimate exercise of discretion under § 212(h)(2), and it therefore has no effect on the proper disposition of this petition for review. 2 an alien’s undesirability as a permanent resident with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise ...
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