NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELO BALLESTEROS-GALICIA, No. 13-72890
Petitioner, Agency No. A091-621-694
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM *
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2017**
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and DONATO,*** District
Judge.
Marcelo Ballesteros-Galicia, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ dismissal of his appeal from an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
immigration judge’s decision denying him a waiver under Section 237(a)(1)(H) of
the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Ballesteros-Galicia contends that the BIA erred in finding him ineligible for
a Section 237(a)(1)(H) waiver because he satisfied the statutory requirement that
he be “otherwise admissible,” but Ballesteros-Galicia’s reliance on Ledezma-
Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), for that argument is misplaced.
We held in that case that “Ledezma-Galicia is not removable by reason of being an
aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to
convictions, like Ledezma-Galicia’s, that occurred prior to November 18, 1988.”
Id. at 1080. That has no application to this case because Ballesteros-Galicia is not
charged with removability on the basis of any aggravated felony. He was instead
charged with being removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien
convicted of a controlled substance offense, because of his May 1986 conviction of
possession for sale of cocaine in violation of California Health and Safety Code
Section 11351.
Unlike Ledezma-Galicia, Ballesteros-Galicia’s cocaine conviction made him
excludable and deportable from the moment of conviction. See 8 U.S.C.
§ 1182(a)(23) (1986) (aliens “ineligible to receive visas and shall be excluded from
admission into the United States” if “convicted of a violation of . . . any law or
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regulation relating to the illicit possession of or traffic in narcotic drugs”); 8 U.S.C.
§ 1251(a)(11) (1986) (alien in the United States deportable if he “at any time has
been convicted of a violation of . . . any law or regulation relating to the illicit
possession of or traffic in narcotic drugs”); cf. Ledezma-Galicia, 636 F.3d at 1062-
66 (immigration law then in effect did not render Ledezma-Galicia removable at
the time he was convicted of sexual abuse of a minor, which only later became
defined as a deportable “aggravated felony”). This factual difference distinguishes
Ledezma-Galicia from this case and confirms Ballesteros-Galicia’s ineligibility for
a Section 237(a)(1)(H) waiver. See Corona-Mendez v. Holder, 593 F.3d 1143,
1147 (9th Cir. 2010) (Section 237(a)(1)(H) waiver of fraud statutorily unavailable
if petitioner is inadmissible on grounds other than the fraud petitioner seeks
excused). Even if Section 237(a)(1)(H) could excuse Ballesteros-Galicia’s failure
to disclose his 1986 controlled substance conviction in his subsequent applications
to adjust his status, the fact of the conviction would remain unexcused and render
him otherwise inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Consequently, the BIA correctly concluded that Ballesteros-Galicia was not
“otherwise admissible” and that he was ineligible for a Section 237(a)(1)(H)
waiver.
PETITION FOR REVIEW DENIED.
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