### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 60668 Summary Calendar

ROGELIO DELGADO MERINO, A lso K nown as Rogelio Delgado , Petitioner ,

v ersus LORETTA LYNCH, U.S. Attorney General , Respondent

.

Petition for Review of an Order of t he Board of Immigration Appeals BIA No. A 205 287 790

Before REAVLEY, SMITH, and HAYNES, Circuit Judges. PER CURIAM: *

Rogelio Delgado Merino , a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals ( “ BIA ” ) dismissing his appeal and affirming a decision of the Immigration Judge ( “ IJ ” ) that Merino

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 20, 2015 Lyle W. Cayce Clerk Case: 14-60668 Document: 00513280009 Page: 1 Date Filed: 11/20/2015N o. 14

- 60668

2 was removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the United States without being admitted or paroled. Merino claims that (1) the BIA engaged in impermissible factfinding; (2) the BIA erroneously relied on form I

- 213 as a confession by Meri no; (3) the BIA applied an unrea

sonably stringent evidentiary standard; (4) there was substantial evi dence of Merino’s lawful entry into the United States; and (5) the BIA abused its discre

tion in holding that form I

- 213 was alone sufficient to support the IJ’s adve rse
credibility determination. Merino also has filed an unopposed motion asking for judicial notice of 8 C.F.R. § § 212.1(c)(1) and 235.1(h)(1)(iii).

Merino conceded in the district court, and does not challenge here, the determination th at he was removable under § 1182(a)(2)(A )(i) (II) for having been convicted of a controlled

- substance offense. Bec ause the IJ’s decision that Merino was removable under that subsection is unchallenged and would n ot be altered even if we were to decide favorably on Merino ’s challenge to the conclu sion that he was present in the United States without being admitted or paroled , we need not address the issue. See Capital Concepts Props. 85

- 1 v. Mut. First, Inc. , 35 F.3d 170, 176 (5th Cir. 1994). Consequently, the motion for judicial notice is DENIED as unnecessary.
Merino challenges the IJ’s finding that he was not entitled to pre

conclusion voluntary departure. He contend s that 8 C.F.R. § 1240.26(b)

- (1)(i)(C) does not require , as a prerequisite for voluntary depar ture, a conces
sion of removability on every charge

. But he failed to exhaust th at claim before the BIA , see Claudio v. Holder , 601 F.3d 316, 319 (5th Cir. 2010), so we lack jurisdiction to consider it , s ee Omari v. Holder , 562 F.3d 314, 319 (5th Ci r. 2009)

. Merino contend s that there was substantial evidence to establish his lawful admission into the country and that, consequently, the controlled

- Case: 14-60668 Document: 00513280009 Page: 2 Date Filed: 11/20/2015N o. 14

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3 substances violation should have been brought under 8 U.S.C. § 1227(a)

- (2)(B)(i), which addresses offen ses committed by deportable aliens, as distin

guished from inadmissible aliens. Merino therefore asserts that the Notice to Appear contained incorrect factual information and must be terminated so that the g overnment , if it wishes, can institute new charg es. As we have already explained , however, we need not address any argument related to Merino’s
in admissibility. The petition for review is DENIED. Case: 14-60668 Document: 00513280009 Page: 3 Date Filed: 11/20/2015