NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO RUVALCABA-DURAN, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 15-71310

Agency No. A077-144-025

MEMORANDUM*

On Petition for Review of a

Final Order of Removal from the

Board of Immigration Appeals

Submitted February 16, 2018**

San Francisco, California

Before: KLEINFELD and TALLMAN, Circuit Judges, and MURPHY,*** District 

Judge.

 

* 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 Stephen Joseph Murphy III, United States District 

Judge for the Eastern District of Michigan, sitting by designation.

FILED

MAR 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Petitioner Roberto Ruvalcaba-Duran seeks review of a final order of 

removal from the Board of Immigration Appeals (“BIA”).

1 He presents two 

challenges: (1) the BIA erred by failing to recognize that Petitioner’s aggravated 

felony could be waived under 8 U.S.C. § 1182(h); and (2) the BIA erred in denying 

Petitioner’s request for a withholding of removal by finding that “Mexican 

nationals who marry into a family with ties in the United States and Mexico that is 

a target for kidnapping and ransom in Mexico by gangs who have ties to the 

Mexican government” is not a cognizable social group. 

1. The BIA correctly ignored whether Petitioner’s aggravated felony could 

be waived under 8 U.S.C. § 1182(h). Petitioner was charged with removability on 

two grounds: (1) as an alien present in the United States without being admitted or 

paroled, 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien who had been unlawfully 

present in the United States for an aggregate period of more than one year and then 

entered or attempted to reenter the United States without being admitted, 8 U.S.C. 

§ 1182(a)(9)(C)(i)(I). In preliminary hearings, Petitioner—with the assistance of 

counsel—admitted the factual allegations and conceded removability on both 

charges. That concession, if accepted by the Immigration Judge, is conclusive and 

 

1 The Court reviews the BIA’s decision because it issued its own opinion rather than 

adopting the Immigration Judge’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 

(9th Cir. 2004).
3

relieves the government of its burden to prove he is removable. Perez-Mejia v. 

Holder, 663 F.3d 403, 414 (9th Cir. 2011).

Petitioner, however, changed course at his merits hearing and there stated 

that he entered the United States using false identification. If true, Petitioner may

not be removable under 8 U.S.C. § 1182(a)(9)(C)(i)(I) if his entrance with false 

identification is deemed to be “admission.” On appeal, however, Petitioner does 

not challenge that he conceded removability under 8 U.S.C. § 1182(a)(9)(C)(i)(I). 

Rather, he argues that the concession is inoperative either because it was made as a 

result of ineffective assistance of prior counsel or because the Immigration Judge 

did not accept the earlier concession. The ineffective-assistance-of-counsel 

challenge is not properly before us because Petitioner did not raise it in his opening 

brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (holding 

that issues not raised in the body of the opening brief are deemed waived). And the 

record clearly shows that the BIA and the Immigration Judge accepted the 

concession: both opinions state that Petitioner conceded removability as to both 

charges, the Immigration Judge noted that she was “not accepting [Petitioner’s] 

testimony that he entered with a false document,” and the BIA found that the 

Immigration Judge “explicitly did not accept [Petitioner’s] subsequent claim that 

he last entered the United States with a false document.” The concession was 

sufficient to determine removability under 8 U.S.C. § 1182(a)(9)(C)(i)(I). See 9 
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C.F.R. § 1240.10(c). Under a plain reading of the statute, a waiver pursuant to 8 

U.S.C. § 1182(h) does not apply to aliens removable under 8 U.S.C. 

§ 1182(a)(9)(C)(i)(I). Petitioner is left without entitlement to any relief.

2. The BIA correctly found that Petitioner is not entitled to a withholding of 

removal. Petitioner alleges that he is at risk of persecution under 8 U.S.C. § 

1231(b)(3)(A) because he belongs to the social group of “Mexican nationals who 

marry into a family with ties in the United States and Mexico that is a target for 

kidnapping and ransom in Mexico by gangs who have ties to the Mexican 

government.” The BIA correctly rejected this allegation as too broad to be 

cognizable as a particular social group. See Delgado-Ortiz v. Holder, 600 F.3d 

1148, 1151–52 (9th Cir. 2010) (holding that Mexicans returning from the United 

States who could be targeted as victims of violent crime as a result is not a 

cognizable social group). To the extent Petitioner argues he is at risk due to an 

imputed political opinion—rather than membership in a social group—that issue 

was not raised below and is therefore not properly before us. 8 U.S.C. § 1252(d)

(requiring an alien to exhaust all administrative remedies); see also Vargas v. U.S. 

Dep’t of Immigration & Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987).

PETITION DENIED.