                              NOT FOR PUBLICATION                        FILED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 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


                                           3
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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