FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODOLFO PEDROZA-PADILLA, 

No. 03-74640 Petitioner,

Agency No.

v.  A27-620-873

ALBERTO R. GONZALES, Attorney ORDER AND General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 16, 2006

Submission Vacated October 6, 2006

Resubmitted January 18, 2007

Pasadena, California

Filed May 15, 2007

Before: Alex Kozinski, Diarmuid F. O’Scannlain, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge O’Scannlain

5735
COUNSEL

Barbara K. Strickland, San Deigo, California, argued the

cause for the petitioner and filed briefs in support of the petitioner. 

Erica B. Miles, Attorney, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, Washington, D.C.,

argued the cause and filed a brief for the respondent. Peter D.

Keisler, Assistant Attorney General, Civil Division, and Terri

J. Scadron, Assistant Director, were on the brief. Peter D.

Keisler, Assistant Attorney General, Civil Division, Linda S.

Wernery, Assistant Director, and Erica B. Miles, Attorney,

Office of Immigration Litigation, U.S. Department of Justice,

filed a supplemental brief in support of the respondent. 

PEDROZA-PADILLA v. GONZALES 5737
ORDER

Respondent’s request for publication is GRANTED. The

memorandum disposition, located at 2007 WL 295496 (9th

Cir. Jan. 29, 2007), is withdrawn. A superseding opinion will

be filed simultaneously with this Order. No further petitions

for rehearing or rehearing en banc may be filed.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a waiver of inadmissibility under

the Immigration Reform and Control Act also waives the

legalization requirement that an alien have resided continuously in the United States since January 1, 1982. 

I

A

Rodolfo Pedroza-Padilla (“Pedroza”), a Mexican national,

first entered the United States without inspection in November 1980. Pedroza was subsequently ordered deported from

the United States in 1984, was given until January 5, 1985 to

depart voluntarily, but failed to depart until March 27, 1985.

He subsequently reentered the United States, and on October

18, 1986, the Immigration and Naturalization Service (“INS”)

initiated deportation proceedings against Pedroza with an

Order to Show Cause alleging that he had entered the United

States without inspection in violation of 8 U.S.C. § 1251(a)(2)

(1986). On October 30, 1986, an immigration judge (“IJ”)

granted Pedroza’s motion to close his deportation proceeding

administratively so that he could file for adjustment of status

to that of an alien lawfully admitted for temporary residence

pursuant to 8 U.S.C. § 1255a, which provides eligibility based

5738 PEDROZA-PADILLA v. GONZALES
on, among other things, continuous residence in the United

States since January 1, 1982. 

On June 24, 1988, Pedroza’s legalization application was

denied by the Director, Western Service Center, of the INS.

The Director reasoned that Pedroza could not demonstrate

continuous residence within the meaning of 8 U.S.C.

§ 1225a(g)(2)(B)(i) because he had left the United States in

1985 under an order of deportation. Subsequent to this denial,

the INS promulgated an implementing regulation stating that

an alien shall be regarded as having resided continuously if,

inter alia, “[the] alien’s departure from the United States was

not based on an order of deportation.” C.F.R.

§ 245a.1(c)(1)(iii) (1991). When Pedroza’s appeal finally

reached the Administrative Appeals Office (“AAO”) on

December 31, 1997, the AAO noted that a challenge to this

regulation as applied to aliens like Pedroza had recently been

dismissed in Proyecto San Pablo v. INS, 4 F. Supp. 2d 881

(D. Ariz. 1997). It therefore dismissed his appeal. 

On August 29, 2000, the INS filed a motion to recalendar

Pedroza’s deportation proceedings. Between the date of the

LAU’s denial of Pedroza’s legalization petition and the INS’

motion, however, we reversed the Proyecto San Pablo decision that the LAU had cited in denying his legalization application. See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th

Cir. 1999). Consequently, when Pedroza next appeared before

the IJ on December 12, 2000, he argued that his deportation

should be terminated on the grounds that he was a putative

class member in the subsequently reinstated Proyecto San

Pablo litigation. 

On March 16, 2001, the district court in the Proyecto San

Pablo litigation ordered the INS to “reopen and readjudicate

all legalization applications,” like Pedroza’s, “previously

denied on the basis of 8 U.S.C. § 1255a(g)(2)(B)(i),” and

issued “a stay of removal . . . to all legalization applicants

whose applications ha[d] been denied” on that basis. Proyecto

PEDROZA-PADILLA v. GONZALES 5739
San Pablo v. INS, No. 89-00456-WDB, at *5 (D. Ariz. Mar.

16, 2001) (order reopening class cases). Referencing that

order, Pedroza again argued that his deportation proceeding

should be terminated or administratively closed. 

On August 8, 2002, the IJ rejected all of Pedroza’s arguments. Finding Pedroza eligible for voluntary departure, however, the IJ gave him one year to leave the United States. He

appealed the IJ’s decision to the Board of Immigration

Appeals (“BIA”) which affirmed without opinion on November 18, 2003. Pedroza timely seeks review of that decision.

B

While Pedroza’s appeal was pending here, he filed a

motion for a supplemental stay of deportation. From that

motion, we learned that Pedroza’s legalization application had

been reopened pursuant to Proyecto San Pablo and denied on

May 12, 2005, by the AAO. After oral argument on August

16, 2006, we ordered supplemental briefing on whether we

had jurisdiction to review the such denial.1 On October 6,

2006, we vacated submission and ordered the parties to brief

the merits of the AAO’s May 12, 2005 denial. 

II

[1] Pedroza first contends that the IJ improperly denied his

application to suspend deportation proceedings by retroactively applying the stop-time rule of the Illegal Immigration

Reform & Immigrant Responsibility Act of 1996, 8 U.S.C.

§ 1229b(d)(1), to his case. We reject Pedroza’s argument. The

language of the stop-time rule plainly indicates that it applies

to a case such as Pedroza’s. Ram v. INS, 243 F.3d 510, 516

1We conclude that we do have jurisdiction to review the May 12, 2005,

denial under 8 U.S.C. § 1244a(f)(4), permitting judicial review of denials

of legalization applications in conjunction with judicial review of an order

of deportation. 

5740 PEDROZA-PADILLA v. GONZALES
(9th Cir. 2001). Also, we are satisfied that application of the

stop-time rule in this instance is not unconstitutionally retroactive after INS v. St. Cyr, 533 U.S. 289 (2001). See JimenezAngeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002).2

III

[2] Pedroza next contends that the May 12, 2005 denial of

his legalization application by the AAO was an abuse of discretion. A legalization applicant must establish that he: (1)

applied for legalization during a twelve month period beginning May 5, 1987; (2) resided unlawfully in the United States

continuously since at least January 1, 1982; (3) has been

physically present in the United States continuously since

November 6, 1986; and (4) is otherwise admissible as an

immigrant. See Proyecto San Pablo, 189 F.3d at 1134 (citing

8 U.S.C. §§ 1255a(a)(1)-(4)). 

[3] The AAO held that because Pedroza was deported from

the United States on March 27, 1985, a waiver of inadmissibility was useless to him. In short, the AAO determined that

even if he received such waiver, he would continue to be ineligible for legalization because he had not resided continuously

in the United States since at least January 1, 1982. See 8

U.S.C. § 1255a(g)(2)(B)(i). The AAO explained:

Congress set forth, at section 245A(d)(2) of the Act,

[8 U.S.C. § 1255a(d)(2),] a provision to waive certain grounds of inadmissibility under section 212(a)

of the Act[, 8 U.S.C. § 1182(a)]. Section 245A(g)(2)

of the Act, concerning continuous residence, is a

separate section unrelated to the waiver provisions.

Congress provided no relief in the legalization program for failure to maintain continuous residence

2Petitioner’s argument that the IJ should have terminated the removal

proceedings because he had a legalization application pending is now

moot because his legalization application has been reopened and denied.

PEDROZA-PADILLA v. GONZALES 5741
due to a departure under an order of deportation.

Relief is provided in the Act for absences based on

factors other than deportation, specifically absences

that were prolonged due to emergencies and

absences approved under the advance parole provisions. Clearly, with respect to maintenance of continuous residence, it was not congressional intent to

provide relief for absences under an order of deportation. While the applicant’s failure to maintain continuous residence, and his inadmissibility for having

been deported and having returned without authorization, both stem from the deportation, a waiver is

possible only for the inadmissibility under section

212(a)(9)(A)(ii)(II).

We agree with the foregoing analysis that nothing in the statute compels Pedroza’s argument that continuous residence

may be waived.3

[4] In any event, there is a logical basis for the AAO’s

reading of the statute, namely that aliens deported prior to

January 1, 1982 are inadmissible because of the deportation,

yet eligible for legalization under Proyecto San Pablo, 189

F.3d at 1134, and therefore potentially deserving of a waiver

of inadmissibility. Because there was no showing of continuous residence to qualify for legalization, there was no abuse

of discretion in the AAO’s determination and we thus also

deny petitioner’s motion for stay of removal. 

PETITION DENIED.

3Petitioner raises several issues in this appeal that were not properly

raised before the agency. While we deny the government’s motion to

strike parts of petitioner’s brief, we do not reach the merits of these new

issues because “[f]ailure to raise an issue below constitutes failure to

exhaust administrative remedies and ‘deprives this court of jurisdiction to

hear the matter.’ ” Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997)

(quoting Vargas v. INS, 831 F.2d 906, 907 (9th Cir. 1987)). 

5742 PEDROZA-PADILLA v. GONZALES