                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARCELO BALLESTEROS-GALICIA,                    No.    13-72890

                Petitioner,                     Agency No. A091-621-694

 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM *
General,

                Respondent.

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

                               Submitted May 12, 2017**
                                 Pasadena, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and DONATO,*** District
Judge.

      Marcelo Ballesteros-Galicia, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ dismissal of his appeal from an


      *
             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 James Donato, United States District Judge for the
Northern District of California, sitting by designation.
immigration judge’s decision denying him a waiver under Section 237(a)(1)(H) of

the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

      Ballesteros-Galicia contends that the BIA erred in finding him ineligible for

a Section 237(a)(1)(H) waiver because he satisfied the statutory requirement that

he be “otherwise admissible,” but Ballesteros-Galicia’s reliance on Ledezma-

Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), for that argument is misplaced.

We held in that case that “Ledezma-Galicia is not removable by reason of being an

aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to

convictions, like Ledezma-Galicia’s, that occurred prior to November 18, 1988.”

Id. at 1080. That has no application to this case because Ballesteros-Galicia is not

charged with removability on the basis of any aggravated felony. He was instead

charged with being removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien

convicted of a controlled substance offense, because of his May 1986 conviction of

possession for sale of cocaine in violation of California Health and Safety Code

Section 11351.

      Unlike Ledezma-Galicia, Ballesteros-Galicia’s cocaine conviction made him

excludable and deportable from the moment of conviction. See 8 U.S.C.

§ 1182(a)(23) (1986) (aliens “ineligible to receive visas and shall be excluded from

admission into the United States” if “convicted of a violation of . . . any law or


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regulation relating to the illicit possession of or traffic in narcotic drugs”); 8 U.S.C.

§ 1251(a)(11) (1986) (alien in the United States deportable if he “at any time has

been convicted of a violation of . . . any law or regulation relating to the illicit

possession of or traffic in narcotic drugs”); cf. Ledezma-Galicia, 636 F.3d at 1062-

66 (immigration law then in effect did not render Ledezma-Galicia removable at

the time he was convicted of sexual abuse of a minor, which only later became

defined as a deportable “aggravated felony”). This factual difference distinguishes

Ledezma-Galicia from this case and confirms Ballesteros-Galicia’s ineligibility for

a Section 237(a)(1)(H) waiver. See Corona-Mendez v. Holder, 593 F.3d 1143,

1147 (9th Cir. 2010) (Section 237(a)(1)(H) waiver of fraud statutorily unavailable

if petitioner is inadmissible on grounds other than the fraud petitioner seeks

excused). Even if Section 237(a)(1)(H) could excuse Ballesteros-Galicia’s failure

to disclose his 1986 controlled substance conviction in his subsequent applications

to adjust his status, the fact of the conviction would remain unexcused and render

him otherwise inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II).

      Consequently, the BIA correctly concluded that Ballesteros-Galicia was not

“otherwise admissible” and that he was ineligible for a Section 237(a)(1)(H)

waiver.

      PETITION FOR REVIEW DENIED.




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