Matter of Diaz and Lopez (issued 1/27/10)
**245(i)/AOS, inadmissible for being unlawfully present for more than a year**
The respondents, who are inadmissible under section 212(a)(9)(C)(i)(I) of the Act, are ineligible for adjustment of status under INA section 245(i). Neither the IJ nor the Board remains bound by the Ninth Circuit’s decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2004) in light of the Board’s subsequently issued decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and the Ninth Circuit’s decision in Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) which overrules Perez-Gonzalez, 379 F.3d 783 (9th Cir. 2004)( holding that adjustment of status under section 245(i) of the Act remained available for respondents who are inadmissible under INA section 12(a)(9)(C)(i)(II)).
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