Roberto Ruvalcaba v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 7 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO RUVALCABA-DURAN, No. 15-71310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). 2 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 ...

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