                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 14, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LUIS HERNANDEZ ESPITIA,

      Petitioner,

v.                                                          No. 15-9510
                                                        (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges.
                 _________________________________


      Luis Hernandez Espitia appeals the order of the Board of Immigration Appeals

(BIA) affirming the Immigration Judge’s (IJ) decision finding him ineligible for

adjustment of status, cancellation of removal, asylum, suspension of removal, and




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
other grounds for relief from removal.1 We have jurisdiction to review final orders of

the BIA pursuant to 8 U.S.C. § 1252, and we affirm.

       Petitioner is a native and citizen of El Salvador. He testified that he arrived in

the United States in 1981. In 1987, Petitioner pleaded guilty to the sale,

transportation, or giving away of a controlled substance in violation of Cal. Health &

Safety Code § 11360(a), for which he was given a suspended sentence of 120 days

and 36 months of probation. In November 1987, he was convicted of a second

violation of § 11360(a). Probation was revoked on his first conviction, and he was

sentenced to two years in prison to run concurrently with his first sentence.

Significantly, Petitioner did not present any documentary evidence regarding these

§ 11360 convictions, such as the indictment, judgment of conviction, jury

instructions, or a signed guilty plea.

       On September 26, 2006, Petitioner filed an application for adjustment of status

with the U.S. Department of Homeland Security (DHS), which was denied. On

February 18, 2011, the government issued Petitioner a notice to appear, charging him

with removability under 8 U.S.C. § 1182(a)(6)(A)(i), for being present as an

immigrant present in the United States without inspection.

       1
          Petitioner’s Opening Brief does not assert any challenge to the BIA’s
decision denying him restriction on removal under the Immigration and Nationality
Act or under the Convention Against Torture. “Arguments inadequately briefed in
the opening brief are waived.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998). We will not address Petitioner’s withholding-of-relief argument
first raised in his Reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir.
2000) (“This court does not ordinarily review issues raised for the first time in a
reply brief.”).

                                            2
      The IJ found that Petitioner was removable under § 1182(a)(6)(A)(ii) based on

his admission to immigration officials that he had not been lawfully admitted or

paroled to the United States. The IJ denied Petitioner’s suspension of deportation

request because that relief is no longer available following passage of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The IJ

also found Petitioner was ineligible for adjustment of status, cancellation of removal,

asylum, and withholding of removal relief because of his two § 11360(a) convictions

for selling or transporting a controlled substance. The IJ ruled that Petitioner had

failed to produce sufficient documentary evidence to establish that these convictions

were not aggravated felonies. Finally, the IJ ruled Petitioner was not entitled to

Convention Against Torture (CAT) relief because he failed to establish that he was

tortured in the past or would suffer torture in the future.

      Petitioner appealed to the BIA, which affirmed in a four-page decision by a

single member of the Board. The BIA determined that Petitioner was removable

under § 1182(a)(6)(A)(ii) based on his admission to immigration officials that he

entered the United States without legal status. It ruled that Petitioner’s two

§ 11360(a) convictions were not categorically aggravated felonies, but rather were

controlled substance offenses of a particularly serious nature. Crimes of a

particularly serious nature include, but are not limited to, aggravated felonies.

See N-A-M v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (holding that a crime

need not be an aggravated felony to be classified as particularly serious). Unlawful

trafficking in controlled substances is presumed to be a particularly serious crime,

                                            3
although an immigrant can overcome that presumption in rare cases involving

“extraordinary and compelling” circumstances. In re Y–L–, 23 I. & N. Dec. 270, 274

(Op. Att’y Gen. 2002).

       The BIA held that Petitioner failed to show he was eligible for adjustment of

status, waiver of inadmissibility, cancellation of removal, asylum, or withholding of

removal because of his two § 11360(a) controlled substance convictions.

See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing that violation of a law “relating to a

controlled substance” renders noncitizen inadmissible); id., § 1255(a)(2) (providing

that a noncitizen must be admissible at the time he seeks adjustment of status);

id. § 1182(h) (waiver of inadmissibility available for a controlled substance violation

only if it is a single offense of 30 grams or less of marijuana); id. § 1158(b)(2)(A)(ii)

(persons convicted of a particularly serious crime are ineligible for asylum); id.,

§ 1231(b)(3)(B)(ii) (persons convicted of a particularly serious crime are ineligible

for restriction on removal). The BIA denied Petitioner’s request for suspension of

removal because that relief was no longer available after enactment of IIRIRA.

Finally, the BIA held there was insufficient evidence that it was more likely than not

Petitioner would be tortured upon removal, and, thus affirmed the IJ’s denial of CAT

relief. Petitioner then filed this petition for review.




                                             4
                                            I.

      Standards of Review. We review the BIA’s decision to determine whether it is

supported by substantial evidence, considering the record as a whole. Neri-Garcia v.

Holder, 696 F.3d 1003, 1008 (10th Cir. 2012). “Agency findings of fact are

conclusive unless the record demonstrates that any reasonable adjudicator would be

compelled to conclude to the contrary.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122

(10th Cir. 2007) (internal quotation marks omitted). We review for an abuse of

discretion the BIA’s determination that Petitioner was convicted of a particularly

serious crime. See Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014). Because

the BIA issued a single-member decision, “we will not affirm on grounds raised in

the IJ decision unless they are relied upon by the BIA, [although] we are not

precluded from consulting the IJ’s more complete explanation of those same

grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 (10th Cir. 2013) (internal

quotation marks, brackets and ellipsis omitted).

      Relief Barred by § 11360(a) Convictions. Petitioner’s first argument is that

the BIA erred in rejecting his argument that “because the government failed to

establish that his convictions resulted in removability, those convictions should not

be a bar to relief.” Aplt. Opening Br. at 1 (capitalization omitted). Then, throughout

his discussion of this argument, Petitioner repeatedly argues that the government

failed to meet its burden to show he is ineligible for the types of relief he seeks. Id.

at 1-19. Petitioner’s arguments rest on two faulty premises: the incorrect factual

assertion that he was found removable because of his § 11360(a) convictions, and the

                                            5
incorrect legal argument that the government has a burden to show he is ineligible for

the relief from removability that he seeks. Petitioner is confusing removability with

eligibility for relief from removal and the attendant burden-of-proof differences.

      The government bears the burden to establish facts showing that a noncitizen

is removable, that is, that the noncitizen may be lawfully expelled from the United

States. 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a). In Petitioner’s case, his

§ 11360(a) convictions were not relevant to the BIA’s finding that Petitioner was

removable. Rather, the BIA found that Petitioner was inadmissible under

§ 1182(a)(6)(A)(i), and therefore removable, because he entered the United States

without being lawfully admitted or paroled. See id. (providing that “[a]n alien

present in the United States without being admitted or paroled, or who arrives in the

United States at any time or place other than as designated by the Attorney General,

is inadmissible”); 8 U.S.C. § 1229a(a)(2) (indicating that inadmissible individuals are

removable). Petitioner was not found to be removable because of his § 11360(a)

controlled substance convictions.

      Notably, Petitioner’s opening brief asserts no challenge to the BIA’s ruling

that he is removable under § 1182(a)(6)(A)(i); thus, he has waived any challenge to

the BIA’s determination that he is removable. In any event, substantial evidence

supports the agency’s findings that Petitioner admitted to immigration officials that

“he never obtained immigration documents to enter or reside in the United States,”




                                           6
Admin. R. at 791. Thus, we find no error in the BIA’s determination that Petitioner

is removable.2

      Once removability is established, as it was here, the noncitizen bears the

“burden of establishing that he or she is eligible for any requested benefit or

privilege” and if there is evidence of a mandatory ground for denying relief, such as a

disqualifying conviction, the immigrant bears “the burden of proving by a

preponderance of the evidence that such grounds do not apply.” § 1240.8(d); see

also 8 U.S.C. § 1229a(c)(4)(A) (providing that an immigrant “applying for relief or

protection from removal has the burden of proof to establish that [he] . . . satisfies the

applicable eligibility requirements[ ] and . . . merits a favorable exercise of

discretion”).

      Relevant to this case, we have held that an inconclusive record regarding a

conviction will not satisfy a noncitizen’s burden of demonstrating eligibility for

relief. Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009). In Garcia, the


      2
         Contrary to his earlier admission to immigration officials, Petitioner now
asserts he was waived through at an inspection point, from which he argues he was
legally admitted, citing In re Quilantan, 25 I. & N. Dec. 285 (BIA 2010). In that
case, the BIA ruled that when a noncitizen presents himself at a port of entry, makes
no false claim to citizenship, and the entry is procedurally regular, the noncitizen has
been lawfully admitted to the United States for the purposes of applying for an
adjustment of status. Id. at 288-92. The BIA expressly limited its holding to the use
of the word “admitted” in § 1255(a) for adjustment-of-status purposes, however.
Id. at 290. Thus, to the extent that Petitioner is relying on In re Quilantan to argue
the BIA erred in finding him removable, we are not persuaded. See Cordova-Soto v.
Holder, 659 F.3d 1029, 1034 (10th Cir. 2011) (holding that In re Quilantan dealt
only with whether an alien had to show substantive lawfulness in order to prove he
had been “admitted” for adjustment of status purposes).

                                            7
immigrant pleaded guilty to assault, but the record of conviction was inconclusive as

to whether the conviction was for a crime involving moral turpitude, which would bar

him from seeking discretionary relief. This court held that, once the government had

demonstrated that the immigrant was removable, “the burden shifted to him to prove

the absence of any impediment to discretionary relief.” Id. at 1290. Accepting the

immigrant’s argument that he had met his burden by submitting an inconclusive

record of conviction would, the Tenth Circuit declared, “effectively nullif[y] the

statutorily prescribed burden of proof.” Id.; see also Syblis v. Att’y Gen. of the U.S.,

763 F.3d 348, 356-57 (3d Cir. 2014) (joining our Circuit as well as the Fourth, Ninth,

and Seventh Circuits in holding that an inconclusive record of conviction is

insufficient to satisfy a noncitizen’s burden of proving eligibility for relief from

removal). Accordingly, there is no merit to any of Petitioner’s arguments that the

government bore any responsibility or burden to produce a record of conviction to

prove his ineligibility for the types of relief he sought.3


       3
         A significant portion of Petitioner’s first appellate argument is focused on
assertions that the BIA was required to apply a categorical approach to determine
whether his § 11360(a) convictions constituted crimes of a particularly serious
nature. See Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (applying a categorical
approach to determine whether a state marijuana conviction constituted an aggravated
felony for purposes of determining whether a noncitizen was removable).
Petitioner’s Moncrieffe arguments rest on the same false premise that his removal
was based on his convictions and that the government bore any burden to show he
was ineligible for relief. See, e.g., Opening Br. at 6 (“[T]he Burden to Produce the
Record of Conviction Falls First Upon the Government”). But Petitioner’s
Moncrieffe arguments suffer from an even more fatal flaw, namely that Petitioner did
not raise them before the BIA. Thus, we lack jurisdiction to consider Petitioner’s
Moncrieffe arguments. See Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir.
                                                                              (continued)
                                             8
      Petitioner admitted his § 11360(a) convictions, Admin. R. at 331, 335, 480,

780. This was sufficient evidence to obligate him—not the government—to prove by

a preponderance of the evidence that the facts underlying these convictions did not

make him ineligible for relief. Petitioner argues he attempted to obtain the necessary

records but they were no longer available. We held in Garcia, however, that the fact

that an immigrant is not to blame for the inconclusive record of conviction does not

relieve him of his statutory burden to prove eligibility for relief. 584 F.3d at 1290.

Petitioner failed to demonstrate that his § 11360(a) controlled substance convictions

were not particularly serious crimes, a mandatory ground for the denial of relief.

Thus, the BIA correctly ruled that because Petitioner failed to rebut the presumption

that his conviction was for a particularly serious crime, he failed to satisfy his burden

to show he was eligible for adjustment of status, cancellation of removal, or asylum.

      Suspension of Deportation. Petitioner next argues the BIA erred in ruling

suspension of deportation is unavailable to him because that form of relief was

repealed by IIRIRA. “Before the enactment of the IIRIRA, the Attorney General had

discretion to suspend deportation of an alien who, among other things, had been

continuously present in the United States for not less than seven years.” Lockett v.

INS, 245 F.3d 1126, 1128-29 (10th Cir. 2001) (citing former 8 U.S.C. § 1254(a)(1)

(repealed 1996)). If the noncitizen committed an act constituting grounds for

deportation, the Attorney General had discretion to suspend deportation only if the

2007) (“[W]e generally assert jurisdiction only over those arguments that a petitioner
properly presents to the BIA.”).

                                            9
individual had, among other conditions, been physically present in the United States

for a continuous period of not less than ten years immediately following the

commission of the deportable act. 8 U.S.C. § 1254(a)(2) (repealed 1996). IIRIRA

replaced suspension of deportation with new requirements for “cancellation of

removal” for nonpermanent residents and new rules for the continuous physical

presence requirement. 8 U.S.C. § 1229b(b) and (d).

      Petitioner argues that IIRIRA’s repeal of suspension-of-deportation cannot be

applied retroactively. He relies upon INS v. St. Cyr, 533 U.S. 289 (2001), involving

another form of relief that was repealed by IIRIRA, waiver of deportation. St. Cyr

held that IIRIRA’s repeal of the waiver-of-deportation provisions could not be

applied retroactively because Congress had not clearly indicated its intent that

IIRIRA would apply retroactively, 533 U.S. at 314-20, and the repeal of the waiver

of deportation attached new legal consequences to the noncitizen’s guilty plea, id.

at 321-26.

      Our circuit has not addressed the question of whether IIRIRA’s repeal of

suspension of deportability relief would have an impermissibly retroactive effect on

noncitizens who were eligible for such relief prior to enactment of IIRIRA. We need

not resolve that question today, however, because at no time was Petitioner eligible

for suspension of deportation before the IIRIRA repealed that form of relief. The

“essential” retroactivity inquiry is “whether the new provision attaches new legal

consequences to events completed before its enactment.” Vartelas v. Holder, –––

U.S. ––––, ––––, 132 S. Ct. 1479, 1491 (2012) (internal quotation marks omitted).

                                          10
          During the removal proceedings, Petitioner asserted that he entered the United

States in January 1981. Admin. R. 465, 476. Petitioner was first charged with

violating § 11360(a) in January 1987, Admin. R. 117, at which time he had not

accrued seven years’ presence in the United States required by former § 1254(a)(1)

for immigrants not charged with a criminal offense to be eligible for suspension of

deportation. For immigrants deportable on criminal grounds, former § 1245(a)(2)

required ten years of continuous physical presence for eligibility. See 8 U.S.C.

§ 1254(a)(2) (repealed 1996). In June 1987, Petitioner was again charged with

violating § 11360(a), for which he was convicted in November 1987. Admin. R.

at 118. Thus, at the time IIRIRA came into effect on April 1, 1997, Petitioner had

not yet accrued ten years’ continuous presence in the United States as required by

former § 1245(a)(2) to be eligible for suspension-of-deportation relief. In short,

Petitioner was not eligible for the discretionary relief of suspension from deportation

at the time he committed the § 11360(a) offenses or when IIRIRA became effective.

Thus, IIRIRA did not deny him any existing eligibility for suspension-of-deportation

relief.

          The petition for review is denied.

                                                Entered for the Court



                                                Carolyn B. McHugh
                                                Circuit Judge




                                               11
