Garfias-Rodriguez

Petitioner-Appellant Francisco GarfiasRodriguez (“Garfias”) appeals a final removal order issued by the Board of Immigration Appeals (“BIA”) that determined that he was ineligible for adjustment of status under 8 U.S.C. § 1255®. He challenges the order on two grounds. First, he contends that our interpretation of 8 U.S.C. §§ 1182 (a)(9)(C)(i)(I) and 1255® in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), takes precedence over the BIA’s subsequent and contrary reading in Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007). Second, he argues that even if Briones is controlling, the BIA impermissibly applied it to him retroactively. Additionally, Garfias argues that the Attorney General exceeded his authority by promulgating 8 C.F.R. § 1240 .26®, which terminates a grant of voluntary departure upon the filing of a petition for review of a final removal order. We reject all three of Garfias’s arguments and deny his petition for review.

I

Garfias is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and departed the country, once in 1999 and once in 2001 (to visit his ailing mother and to attend her funeral, respectively), each time reentering…