Fontilea

MEMORANDUM *

Arthur Reyes Fontilea appeals the BIA decision that found him ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182 (c) because he was convicted of an aggravated felony and served more than 5 years. We deny his petition.

Konstantinova v. INS 1 is inapposite. Konstantinova involved an unopposed motion to remand, which we analogized to a stipulation to remand, and analyzed under 8 C.F.R. § 3.2 (c)(1). By contrast, here, petitioner seeks to hold the Department of Homeland Security (DHS) to an unopposed motion for summary judgment. Motions for remand are provided for in the regulations, but our attention has not been directed to any statute, regulation, or other authority for motions for summary judgment before the DHS and in this procedural context.

Res judicata did not apply because the decision was not final before the BIA ruled. 2 The BIA properly reviewed the controlling question of law de novo. 3 We are unable to identify a violation by the BIA or DHS of the applicable rules that would entitle respondent to relief unless his pre-conviction time served did not count toward the five years.

The relevant language of the waiver of inadmissibility statute…