                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-3506
                                     ___________

                    JORGE RALDA; CAROLA LORENA RALDA,
                                                   Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent

                      ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                    (Agency Nos. A73-174-735 and A97-157-207)
                    Immigration Judge: Honorable Henry S. Dogin
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 20, 2013
                 Before: FISHER, GARTH and ROTH, Circuit Judges

                            (Opinion filed March 22, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Jorge Ralda, a citizen of Guatemala, entered the United States without inspection

in 1988. In 1995, Ralda pleaded guilty in New Jersey state court to second degree

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aggravated assault. N.J. Stat. Ann. § 2C:12-1(b)(1). Ralda’s wife, Carola Lorena Ralda,

who is also a Guatemalan citizen, entered the United States in 2000.

         In 2007, the Government charged Ralda and his wife with removability for

entering without inspection, in violation of Immigration and Nationality Act (“INA”)

§ 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Ralda applied for cancellation of

removal under INA § 240A(b) [8 U.S.C. § 1229b(b)], and for special rule cancellation

under the Nicaraguan and Central American Relief Act of 1997 (“NACARA”).1 An

Immigration Judge (“IJ”) denied relief and the Board of Immigration Appeals (“BIA” or

“Board”) dismissed Ralda’s appeal. The Board essentially held that Ralda was ineligible

for both forms of cancellation because he failed to demonstrate that he had registered on

or before December 31, 1991, for benefits pursuant to the settlement agreement in Am.

Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC”). Ralda

filed a timely petition for review.

         We granted the petition for review in part, denied it in part, and remanded the case

for further proceedings. Ralda v. Att’y Gen., 441 F. App’x 101 (3d Cir. 2011). As

relevant here, we held that the BIA erred in concluding that, because Ralda failed to meet

his burden of establishing that he timely registered for ABC benefits, it did not need to

address Ralda’s argument that his aggravated assault conviction did not constitute a crime

involving moral turpitude. Id. at 104-05. In particular, we noted that “while the failure to


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    Ralda’s wife was included as a derivative applicant on his applications.

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timely file for ABC benefits would preclude relief under NACARA, it does not affect

whether Ralda is eligible for cancellation of removal under § 240A(b)(1).” Id. at 105.

“Because the BIA failed to consider Ralda’s contention that his aggravated assault

conviction was not a crime of moral turpitude for purposes of § 240A(b)(1) eligibility,”

we remanded the matter to the Board.

       On remand, the BIA held that “a conviction for aggravated assault under N.J. Stat.

Ann. § 2C:12-1(b)(1) is categorically a crime involving moral turpitude.” See Partyka v.

Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005) (noting that court applies a categorical

approach to determine whether a state law conviction constitutes a crime involving moral

turpitude). In reaching that conclusion, the Board found that although the statute under

which Ralda was convicted “punishes attempts to cause serious bodily injury to another

with no resulting bodily harm, there is no distinction for immigration purposes with

respect to moral turpitude between the commission of the substantive crime and the

attempt to commit it.” In addition, the BIA determined that a reckless assault – the least

culpable mental state required for a conviction under § 2C:12-1(b)(1) – can implicate

moral turpitude. Consequently, the Board ruled that Ralda was ineligible for cancellation

of removal under § 240A(b)(1). INA § 240A(b)(1)(C) [8 U.S.C. § 1229b(b)(1)(C)]. The

BIA also concluded that Ralda’s wife was ineligible for cancellation of removal because

she did not accrue the requisite 10 years of continuous physical presence in the United

States before being served with the notice to appear in 2007. INA § 240A(b)(1)(A) [8

U.S.C. § 1229b(b)(1)(A)]; § 240A(d)(1) [8 U.S.C. § 1229b(d)(1)]. Ralda and his wife
                                             3
filed another petition for review.

       We have jurisdiction over the petition pursuant to INA § 242(a)(1) [8 U.S.C.

§ 1252(a)(1)]. But, as we have repeatedly held, the failure to identify or argue an issue

in an opening brief constitutes waiver of that issue on appeal. See, e.g., Bradley v. Att’y

Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010). The dispositive issue in this case is whether

the Board properly concluded that Ralda and his wife are statutorily ineligible for

cancellation of removal. That determination turns on whether Ralda was convicted of a

crime involving moral turpitude, INA § 240A(b)(1)(C), and whether his wife had

continuously been in the United States for the required 10 years, INA § 240A(d)(1).

Significantly, however, the petitioners’ counseled brief entirely fails to address these

questions. Instead, the petitioners focus on whether “[t]he [IJ] erred as a matter of law in

the standard . . . used to determine that [Ralda] was statutorily ineligible for” relief under

NACARA. As the Government points out, though, we have already held that we lack

jurisdiction to review the factual determination that Ralda failed to timely register for

NACARA relief and we rejected his contention that he was not provided with an

opportunity to testify. Ralda, 441 F. App’x at 103-04. Under these circumstances, we

conclude that the petitioners have waived any challenge to the BIA’s conclusion that they

are ineligible for cancellation of removal under INA § 240A(b)(1). Singh v. Gonzales,

406 F.3d 191, 195 n.5 (3d Cir. 2005).

       For the foregoing reasons, we will deny the petition for review.


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