                                                                          FILED
                            NOT FOR PUBLICATION                            JUN 01 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

MARCO CUAHTZIN SARINANA                          No. 11-71532
GURIDI,
                                                 B.I.A. No. A059-718-823
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

               Argued February 9, 2015; Resubmitted May 28, 2015
                              Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
        Judge.

      Petitioner Marco Cuahtzin Sarinana Guridi, a native and citizen of Mexico

who was a legal permanent resident ("LPR") of the United States, seeks review of a

final order of removal issued by the Board of Immigration Appeals ("BIA"). An


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Edward F. Shea, Senior United States District Judge for
the Eastern District of Washington, sitting by designation.
immigration judge ("IJ") found Petitioner inadmissible because Petitioner had

admitted, at the Calexico West Port of Entry, that he possessed marijuana in the

United States. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing that an alien is

inadmissible if the alien admits having committed a controlled substance offense or

having committed an act constituting the essential elements of such an offense).

The BIA dismissed Petitioner’s appeal, concluding that the evidence that the

government submitted—a sworn statement signed by Petitioner—was reliable and

that the IJ did not err in finding Petitioner not credible.

      1. We lack jurisdiction to consider whether Petitioner was properly placed

in removal proceedings as an arriving alien, see 8 U.S.C. § 1101(a)(13)(C)(v)

(defining the circumstances under which an alien is regarded as seeking

admission), because Petitioner did not exhaust this claim before the BIA. See 8

U.S.C. § 1252(d)(1) (limiting courts’ jurisdiction to claims that were exhausted

administratively). Contrary to Petitioner’s assertion, this claim is not "akin to" an

assertion of citizenship, which can be raised at any time because it would deprive

the agency of jurisdiction altogether. Whether Petitioner was treated as an arriving

alien or as a removable alien, the agency had jurisdiction over the proceeding.




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      2. For the same reason, failure to exhaust the claim, we lack jurisdiction to

consider whether the IJ’s adverse credibility determination is supported by

substantial evidence. Id.

      3. Petitioner was provided with an adequate definition of possession of a

controlled substance, 21 U.S.C. § 844(a), before making an admission. See In re

K–, 7 I. & N. Dec. 594, 597 (B.I.A. 1957). Contrary to Petitioner’s suggestion, the

definition did not need to identify the particular United States Code section or

statute at issue, as that information is unnecessary to defining the crime and its

essential elements understandably.

      4. The removal order does not violate Petitioner’s right under the Fifth

Amendment to receive equal protection of the laws. Petitioner argues that an LPR

who committed the same controlled substance offense to which he admitted, but

who had remained in the United States, would not be removable, and that there is

no rational reason to distinguish between LPRs who leave the country and attempt

to return and LPRs who remain here. We are not persuaded.

      In light of Congress’ plenary authority over immigration, "federal

classifications distinguishing among groups of aliens are valid unless wholly

irrational." Halaim v. INS, 358 F.3d 1128, 1135 (9th Cir. 2004) (internal quotation

marks and alterations omitted). Such classifications are entitled to a strong


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presumption of constitutional validity. See Nunez-Reyes v. Holder, 646 F.3d 684,

689 (9th Cir. 2011) (en banc). Here, the disparate treatment is between an

individual who left the United States, seeking to return, and an individual who has

remained. But "immigration laws can constitutionally ‘treat aliens who are already

on our soil (and who are therefore deportable) more favorably than aliens who are

merely seeking admittance (and who are therefore excludable).’" Alvarez-Garcia

v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir. 2004) (alteration omitted) (quoting

Servin-Espinoza v. Ashcroft, 309 F.3d 1193, 1198 (9th Cir. 2002)). In other

words, Congress’ decision to make entering the United States more difficult than

remaining here is not wholly irrational.

      DISMISSED in part; DENIED in part.




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