
    Jorge PONCE, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
    No. 11-60798
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Nov. 2, 2012.
    Lawrence Erik Rushton, Rushton Law Firm, Bellaire, TX, for Petitioner.
    
      Walter Bocchini, Esq., Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
    Before DeMOSS, PRADO, and OWENS, Circuit Judges.
   PER CURIAM:

Jorge Ponce, a native and citizen of Mexico, has filed a petition for review of a Board of Immigration Appeals (BIA) order dismissing his appeal of the denial of his application of adjustment of status, pursuant to Immigration and Nationality Act (INA), INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), and the denial of his application for cancellation of removal for certain non-permanent residents, pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b). Ponce argues that he is eligible for adjustment of status despite the permanent bar to admissibility of § 1182(a)(9)(C)(i)(I) because 10 years have elapsed since his prior departure from the U.S., and he therefore qualifies for an exception pursuant to § 1182(a)(9)(C)(ii). He also argues that this court should remand this case to the BIA, because he is now eligible for a grant of nunc pro tunc permission to reapply for admission because 10 years have now elapsed from his prior departure. Finally, Ponce argues that Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir.2005), was wrongly decided.

Ponce did not argue to the BIA, as he does before this court, that the accrual of 10 years since his last departure from the U.S. made him eligible for an exception to the bar of inadmissibility. He also did not argue to the BIA, as he does before this court, that the accrual of 10 years makes him eligible for a grant of nunc pro tunc permission to reapply for admission. As Ponce did not make these arguments in his direct appeal to the BIA, in a motion to reopen, or in a motion for reconsideration, he has failed to exhaust these issues, and this court lacks jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir. 2009); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.2004).

Ponce seeks to preserve appellate review of whether Mortera-Cruz was wrongly decided. Ponce challenged the holding in Morterar-Cruz in his appeal to the BIA and therefore he exhausted this issue. Because the Supreme Court has issued no intervening precedent, and this court has not reconsidered the issue en banc, Mort-eros-Cruz remains the law of this circuit. See Burge v. Parish of St Tammany, 187 F.3d 452, 466 (5th Cir.1999).

PETITION DENIED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     