FILED
NOT FOR PUBLICATION MAR 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO ESCALANTE- No. 11-71774
JIMENEZ, AKA Jose Antonio Escalante,
Agency No. A092-730-905
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2013**
Portland, Oregon
Before: CLIFTON and BEA, Circuit Judges, and MAHAN, District Judge.***
Jose Antonio Escalante-Jimenez entered the United States in 1976 and
attained temporary resident status in 1988. His temporary resident status was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 C. Mahan, U.S. District Judge for the District of
Nevada, sitting by designation.
terminated in 1996, and three years later, he was convicted of possession of
cocaine in violation of Oregon law. See Or. Rev. Stat. § 475.992(1) (1999),
renumbered as 475.752(1). At his removal hearing before the Immigration Judge
(IJ), Escalante-Jimenez conceded to “inadmissibility” under section 212 of the
Immigration and Nationality Act (INA), and asked for asylum and other relief. See
INA §§ 212(a)(6)(A)(i); 212(a)(2)(A)(i)(II). The IJ denied relief and ordered
removal, and the BIA affirmed. On petition for review, Escalante-Jimenez argues
that he should be allowed to withdraw his concession and that he is entitled to
asylum. We deny his petition for review.
Escalante-Jimenez is bound by his pleading-stage concession. The record
does not clearly contradict his concession that he is “inadmissible” for conviction
of a crime related to a controlled substance. See Perez-Mejia v. Holder, 663 F.3d
403, 416-17 (9th Cir. 2011). Escalante-Jimenez has not demonstrated that the
government failed to follow the appropriate statutory procedures to terminate his
temporary residency. If Escalante-Jimenez’s temporary residency was properly
revoked, regulations permit the government to commence “deportation
proceedings” against him. 8 C.F.R. § 245a.2(u)(2)(1). It is not clear that the
government cannot charge an alien who no longer has temporary resident status
with “inadmissibility” in these “deportation proceedings.” And if Escalante-
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Jimenez was not adequately notified of the termination of his temporary residency,
regulations still permit the government to “exclu[de]” him on certain grounds,
including drug convictions. 8 C.F.R. § 245a.2(u)(2)(i)(A)(3); see also INA §§
245A(d)(2)(B)(ii); 212(a)(2)(A)(i)(II). It is also not clear that “exclusion” does not
encompass “inadmissibility.” The BIA did not err in holding Escalante-Jimenez to
his concession.
The BIA also did not err in denying asylum. Escalante-Jimenez claims
membership in the group of “Salvadorian nationals who are returning from the
United States after a very long period . . . and who are thus perceived as
vulnerable, wealthy and holding a conflicting political opinion by the gangs.” This
proposed group is too broad and lacks both particularity and social visibility to
qualify Escalante-Jimenez for asylum. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151-52 (9th Cir. 2010); Santos-Lemus v. Mukasey, 542 F.3d 738, 745 (9th
Cir. 2008), limited by Henriquez-Rivas v. Holder, No. 09-71571, slip. op. at 25 (9th
Cir. Feb. 13, 2013) (en banc); Ochoa v. Gonzales, 406 F.3d 1166, 1170-71 (9th
Cir. 2005).
PETITION DENIED.
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