IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60668

Summary Calendar

ROGELIO DELGADO MERINO, Also Known as Rogelio Delgado,

Petitioner,

versus

LORETTA LYNCH, U.S. Attorney General,

Respondent.

Petition for Review of an Order of

the 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 20, 2015

Lyle W. Cayce

Clerk

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No. 14-60668

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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 Merino; (3) the BIA applied an unreasonably stringent evidentiary standard; (4) there was substantial evidence of 

Merino’s lawful entry into the United States; and (5) the BIA abused its discretion in holding that form I-213 was alone sufficient to support the IJ’s adversecredibility 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 that he was removable under § 1182(a)(2)(A)(i)(II) for having 

been convicted of a controlled-substance offense. Because the IJ’s decision that 

Merino was removable under that subsection is unchallenged and would not 

be altered even if we were to decide favorably on Merino’s challenge to the 

conclusion 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 preconclusion voluntary departure. He contends that 8 C.F.R. § 1240.26(b)-

(1)(i)(C) does not require, as a prerequisite for voluntary departure, a concession of removability on every charge. But he failed to exhaust that claim before 

the BIA, see Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010), so we lack

jurisdiction to consider it, see Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 

2009).

Merino contends that there was substantial evidence to establish his 

lawful admission into the country and that, consequently, the controlled-

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

(2)(B)(i), which addresses offenses committed by deportable aliens, as distinguished from inadmissible aliens. Merino therefore asserts that the Notice to 

Appear contained incorrect factual information and must be terminated so that 

the government, if it wishes, can institute new charges. As we have already

explained, however, we need not address any argument related to Merino’s 

inadmissibility.

The petition for review is DENIED.

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