                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             APR 20 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JING GUO JIN,                                    No.   13-71659

              Petitioner,                        Agency No. A087-957-079

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III,
Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 23, 2017
                               Honolulu, Hawaii

Before:      KOZINSKI, HAWKINS and BEA, Circuit Judges.

      1. The agency properly concluded that Jin was removable under 8 U.S.C. §

1182(a)(7)(A)(i)(I). On November 28, 2009, when the Consolidated Natural

Resources Act of 2008 took effect, Jin became an applicant for admission into the

United States by the operation of law. See 8 U.S.C. § 1225(a) (“An alien present


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                  page 2
in the United States who has not been admitted or who arrives in the United States

. . . shall be deemed . . . an applicant for admission.”); Minto v. Sessions, No. 12-

74027, slip op. at 9–10 (9th Cir. Apr. 17, 2017). Because Jin lacked any “valid

entry document” at that time or at any other point in time since, Jin was and is

inadmissible. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

      Along with his opening brief Jin has submitted a document that purports to

be a valid entry document. But we cannot consider this evidence because it was

never presented to the agency in the first instance. 8 U.S.C. § 1252(b)(4)(A); see

Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (holding that the court is

“statutorily prevented from taking judicial notice of” a piece of evidence that

petitioner did not submit to the Board of Immigration Appeals). Even if we could

consider the evidence, the document on its face suggests that it is a conditional

umbrella permit, and Jin hasn’t pointed to anything in the record that establishes

that he has fulfilled the conditions. Oral Arg. at 10:58–12:54.

      Nor does the agency’s alleged reliance on the Certification of Illegal Status

warrant granting the petition. Nothing in the Immigration Judge’s decisions or the

Board of Immigration Appeals’s dismissal indicate that they relied on the

certification. In fact, the record reveals that the Immigration Judge never received

this evidence.
                                                                                  page 3
      2. The agency didn’t violate Jin’s due process right by failing to address his

challenge to removability under 8 U.S.C. § 1182(a)(6)(A)(i). The agency didn’t

need to address this charge because Jin was removable under 8 U.S.C. §

1182(a)(7)(A)(i)(I).


      3. Because the agency didn’t address Jin’s removability under §

1182(a)(6)(A)(i), we cannot consider whether he would have qualified for an

exception under 48 U.S.C. § 1806(e)(1)(A), which by its plain language applies

only to “lawfully present” aliens who are “in violation of” § 1182(a)(6)(A)(i). See

also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (holding that our

review is limited to the “actual grounds relied upon by the [agency]” (citation

omitted)).


      DENIED.
