Athelualdo Ortega-Lopez v. Eric H. Holder Jr., No. 08-73944 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 02 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ATHELUALDO ORTEGA-LOPEZ, Petitioner, No. 08-73944 Agency No. A035-554-123 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 19, 2010 ** Before: O SCANNLAIN, TALLMAN, and BEA, Circuit Judges. Athelualdo Ortega-Lopez, a native and citizen of the Philippines, petitions pro se for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, and review for substantial * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). evidence the factual findings underlying the agency s decision. Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). We deny the petition for review. The agency properly found Ortega-Lopez removable based on his admissions that he had been previously deported in December 1999 and that he sought re-entry within twenty years of his deportation. See 8 U.S.C. § 1182(a)(9)(A)(i). Ortega-Lopez has not submitted any evidence indicating that he applied for or received a waiver under 8 U.S.C. § 1182(a)(9)(A)(iii) prior to seeking reentry. See 8 C.F.R. § 1240.8(b) (an arriving alien must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged). To the extent Ortega-Lopez seeks to collaterally attack his 1999 removal order, he has not demonstrated a gross miscarriage of justice in his prior proceedings. See Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir. 1980) (per curiam). PETITION FOR REVIEW DENIED. 2 08-73944

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