NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO RUVALCABA-DURAN, No. 15-71310
Petitioner, Agency No. A077-144-025
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of a
Final Order of Removal from the
Board of Immigration Appeals
Submitted February 16, 2018**
San Francisco, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and MURPHY,*** District
Judge.
*
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 Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Petitioner Roberto Ruvalcaba-Duran seeks review of a final order of
removal from the Board of Immigration Appeals (“BIA”).1 He presents two
challenges: (1) the BIA erred by failing to recognize that Petitioner’s aggravated
felony could be waived under 8 U.S.C. § 1182(h); and (2) the BIA erred in denying
Petitioner’s request for a withholding of removal by finding that “Mexican
nationals who marry into a family with ties in the United States and Mexico that is
a target for kidnapping and ransom in Mexico by gangs who have ties to the
Mexican government” is not a cognizable social group.
1. The BIA correctly ignored whether Petitioner’s aggravated felony could
be waived under 8 U.S.C. § 1182(h). Petitioner was charged with removability on
two grounds: (1) as an alien present in the United States without being admitted or
paroled, 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien who had been unlawfully
present in the United States for an aggregate period of more than one year and then
entered or attempted to reenter the United States without being admitted, 8 U.S.C.
§ 1182(a)(9)(C)(i)(I). In preliminary hearings, Petitioner—with the assistance of
counsel—admitted the factual allegations and conceded removability on both
charges. That concession, if accepted by the Immigration Judge, is conclusive and
1
The Court reviews the BIA’s decision because it issued its own opinion rather than
adopting the Immigration Judge’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535
(9th Cir. 2004).
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relieves the government of its burden to prove he is removable. Perez-Mejia v.
Holder, 663 F.3d 403, 414 (9th Cir. 2011).
Petitioner, however, changed course at his merits hearing and there stated
that he entered the United States using false identification. If true, Petitioner may
not be removable under 8 U.S.C. § 1182(a)(9)(C)(i)(I) if his entrance with false
identification is deemed to be “admission.” On appeal, however, Petitioner does
not challenge that he conceded removability under 8 U.S.C. § 1182(a)(9)(C)(i)(I).
Rather, he argues that the concession is inoperative either because it was made as a
result of ineffective assistance of prior counsel or because the Immigration Judge
did not accept the earlier concession. The ineffective-assistance-of-counsel
challenge is not properly before us because Petitioner did not raise it in his opening
brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (holding
that issues not raised in the body of the opening brief are deemed waived). And the
record clearly shows that the BIA and the Immigration Judge accepted the
concession: both opinions state that Petitioner conceded removability as to both
charges, the Immigration Judge noted that she was “not accepting [Petitioner’s]
testimony that he entered with a false document,” and the BIA found that the
Immigration Judge “explicitly did not accept [Petitioner’s] subsequent claim that
he last entered the United States with a false document.” The concession was
sufficient to determine removability under 8 U.S.C. § 1182(a)(9)(C)(i)(I). See 9
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C.F.R. § 1240.10(c). Under a plain reading of the statute, a waiver pursuant to 8
U.S.C. § 1182(h) does not apply to aliens removable under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I). Petitioner is left without entitlement to any relief.
2. The BIA correctly found that Petitioner is not entitled to a withholding of
removal. Petitioner alleges that he is at risk of persecution under 8 U.S.C. §
1231(b)(3)(A) because he belongs to the social group of “Mexican nationals who
marry into a family with ties in the United States and Mexico that is a target for
kidnapping and ransom in Mexico by gangs who have ties to the Mexican
government.” The BIA correctly rejected this allegation as too broad to be
cognizable as a particular social group. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010) (holding that Mexicans returning from the United
States who could be targeted as victims of violent crime as a result is not a
cognizable social group). To the extent Petitioner argues he is at risk due to an
imputed political opinion—rather than membership in a social group—that issue
was not raised below and is therefore not properly before us. 8 U.S.C. § 1252(d)
(requiring an alien to exhaust all administrative remedies); see also Vargas v. U.S.
Dep’t of Immigration & Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987).
PETITION DENIED.
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