FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JING GUO JIN, No. 13-71659
Petitioner, Agency No. A087-957-079
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 23, 2017
Honolulu, Hawaii
Before: KOZINSKI, HAWKINS and BEA, Circuit Judges.
1. The agency properly concluded that Jin was removable under 8 U.S.C. §
1182(a)(7)(A)(i)(I). On November 28, 2009, when the Consolidated Natural
Resources Act of 2008 took effect, Jin became an applicant for admission into the
United States by the operation of law. See 8 U.S.C. § 1225(a) (“An alien present
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
in the United States who has not been admitted or who arrives in the United States
. . . shall be deemed . . . an applicant for admission.”); Minto v. Sessions, No. 12-
74027, slip op. at 9–10 (9th Cir. Apr. 17, 2017). Because Jin lacked any “valid
entry document” at that time or at any other point in time since, Jin was and is
inadmissible. 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Along with his opening brief Jin has submitted a document that purports to
be a valid entry document. But we cannot consider this evidence because it was
never presented to the agency in the first instance. 8 U.S.C. § 1252(b)(4)(A); see
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (holding that the court is
“statutorily prevented from taking judicial notice of” a piece of evidence that
petitioner did not submit to the Board of Immigration Appeals). Even if we could
consider the evidence, the document on its face suggests that it is a conditional
umbrella permit, and Jin hasn’t pointed to anything in the record that establishes
that he has fulfilled the conditions. Oral Arg. at 10:58–12:54.
Nor does the agency’s alleged reliance on the Certification of Illegal Status
warrant granting the petition. Nothing in the Immigration Judge’s decisions or the
Board of Immigration Appeals’s dismissal indicate that they relied on the
certification. In fact, the record reveals that the Immigration Judge never received
this evidence.
page 3
2. The agency didn’t violate Jin’s due process right by failing to address his
challenge to removability under 8 U.S.C. § 1182(a)(6)(A)(i). The agency didn’t
need to address this charge because Jin was removable under 8 U.S.C. §
1182(a)(7)(A)(i)(I).
3. Because the agency didn’t address Jin’s removability under §
1182(a)(6)(A)(i), we cannot consider whether he would have qualified for an
exception under 48 U.S.C. § 1806(e)(1)(A), which by its plain language applies
only to “lawfully present” aliens who are “in violation of” § 1182(a)(6)(A)(i). See
also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (holding that our
review is limited to the “actual grounds relied upon by the [agency]” (citation
omitted)).
DENIED.