Ruben Rosales-Gonzalez v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN R. ROSALES-GONZALEZ, No. 15-71560
AKA Ruben Rosales,
Agency No. A077-075-963
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2018**
Pasadena, California
Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges.
Ruben Rosales-Gonzalez appeals the determination by the Board of
Immigration Appeals (BIA) that he was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(a). We have jurisdiction under 8 U.S.C. § 1252.
*
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).
Rosales-Gonzalez challenges the BIA’s determination that he was not
eligible for cancellation of removal because he failed to meet the requirements of 8
U.S.C. § 1229b(a)(2). The BIA did not err in concluding that Rosales-Gonzalez
failed to establish that he had resided in the United States continuously for seven
years. The IJ’s conclusion that Rosales-Gonzalez’s sole admission to the United
States was on July 17, 2001, is supported by substantial evidence. Fewer than
seven years elapsed between that date and April 22, 2004, the date of his
conviction of distribution of marijuana under Colorado Revised Statute section 18-
18-406(8)(b)(I) (repealed 2010). That conviction constituted a violation of a state
law “relating to a controlled substance,” rendering him inadmissible pursuant to
8 U.S.C. § 1182(a)(2)(A)(i)(II).
Although a permanent resident not seeking admission to the United States is
not “rendered inadmissible” by committing a qualifying offense under 8 U.S.C.
§ 1182(a)(2), see Nguyen v. Sessions, — F.3d —, No. 17-70251, 2018 WL
4016761 (9th Cir. Aug. 23, 2018), this rule does not apply to an alien who is
seeking admission to the United States, such as Rosales-Gonzalez. The record
shows that on May 27, 2010, Rosales-Gonzalez arrived in the United States and
applied for admission as a lawful permanent resident. Rosales-Gonzalez was
served that same day with a Notice to Appear that identified him as an arriving
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alien subject to removal due to illicit trafficking in controlled substances. See
8 U.S.C. § 1101(a)(13)(C)(v) (providing that a lawful permanent resident is
regarded as seeking admission into the United States if the alien has committed an
offense identified in 8 U.S.C. § 1182(a)(2), including a crime relating to a
controlled substance).
We do not address Rosales-Gonzalez’s argument that his Colorado drug
conviction is not a categorical match for a drug trafficking aggravated felony (and
that therefore he was not ineligible for cancellation of removal under
§ 1229b(a)(3)), because the BIA did not rule on that ground. See Lin v. Gonzales,
472 F.3d 1131, 1133 (9th Cir. 2007). Rosales-Gonzalez’s arguments that the
government had the burden to prove both that a waiver under 8 U.S.C. § 1182(h)
was inapplicable and that his conviction did not fall into the personal use exception
fail because he did not raise them before the BIA, and we therefore lack
jurisdiction to reach them. See Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir.
2014).
PETITION DENIED.
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