2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-3506

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w . v i l l a no v a . e du/thir dc ir c uit_2013/10911 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 3506

___________ JORGE RALDA; CAROLA LORENA RALDA, Petitioner s

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________ On Peti tion for Review of an Order of the Board of Immigration Appeals (Agency No s. A73

- 174

- 735 and A97

- 157

- 207 ) Immigration Judge: Honorable Henry S. Dogin

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

March 20, 2013 Befo re: FISHER, GARTH and ROTH , Circuit Judges

(Opinion filed March 22 , 2013 )

___________ OPINION

___________ PER CURIAM Jorge Ralda , a citizen of Guatemala, entered the Un ited States without inspection
in 1988. In 1995, Ralda pleaded guilty in New Jerse y state court to second degree2

aggravated assault. N. J. Stat. Ann. § 2C:12

- 1(b)(1). Ralda’s wife, Carola Lorena Ralda, who is also a Guatemalan citizen, entered the United States in 2000. In 2007, t he G overnment charged Ralda and his wife with remov ability for entering without inspection , in violation of Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Ralda applied for cancellation of removal under INA § 240A(b) [8 U.S.C. § 1229b(b) ], and for special rule can cellation under the Nicaraguan and Central American Relief Act o f 1997 (“NACARA”). 1 An Immigration Judge (“IJ”) denied relief and the Board of Immigration Appeals (“BIA” or “Board”) dismissed Ralda’s appeal

. T he Board essentially held that Ralda was inel igible for both forms of cancellation because he failed to demonstrate that he had registered on or before December 31, 1991, for benefits pursuant to the settlement agreement in Am. Baptist Churches v. Thornburgh , 760 F. Sup p. 796 (N.D. Cal. 1991) (“ABC”)

. Ralda filed a timely petition for review.
We grant ed the p etition for review in part, denied it in part, and remand ed the case for further proceedings

. Ralda v. Att’y Gen. , 441 F. App’x 101 (3d Cir. 2011). As relevant here, we held that the BIA err ed in concluding that, because Ralda failed to meet his burden of establishing that he timely registered for ABC benefits, it did not need to address Ralda’s argument that his aggravated assault conviction did not constitute a crime involving moral turpitu de

. Id. at 104

- 05 . In particular, we noted that “ while the failure to

1 Ralda’s wife was included a s a derivative applicant on his application s .3

timely file for ABC benefits would preclude relief under NACARA, it does not affect whether Ralda is eligible for cancellation of removal under § 240A(b)(1). ” Id. at 105.

“ Because t h e BIA failed to consider Ralda’ s contention that his aggravated assault conviction was not a crime of moral turpitude for purposes of § 240A(b)(1) eligibility ,” we remanded the matter to the Board. On remand, the BIA held that “a conviction for aggravat ed assault under N.J. Stat. Ann. § 2C:12

- 1(b)(1) is categorically a crime involving moral turpitude.” See Partyka v. Att’y Gen. , 417 F.3d 408, 411 (3d Cir. 2005) (noting that court applies a categorical approach to determine whether a state law conviction constitutes a crime involving moral turpitude ). In reaching that conclusion, the Board found that although the statute under whi ch Ralda was convicted “punishes attempts to cause serious bodily injury to another with no resulting bodily harm, there is no distinction for immigration purposes with respect to moral turpitude between the commission of the substantive crime and the attempt to commit it.” In addition, the BIA determined that a reckless assault

– the least culpable mental state required for a c onviction under § 2C:12

- 1(b)(1)

– can implicate moral turpitude. Consequently, the Board ruled that Ralda was ineligible for cancellation of removal under § 240A(b) (1). INA § 240A(b)(1)(C) [8 U.S.C. § 1229b(b)(1)(C)]

. The BIA also concluded that Ralda’s wife was ineligible for cancellation of removal because
she did not accrue the requisite 10 years of continuous physical presence in the United States before being served with the notice to appear in 2007. INA § 240A(b)(1)(A) [8 U.S.C. § 1229b(b)(1)(A)] ; § 240A (d)(1) [8 U.S.C. § 1229b (d)(1) ]. Ralda and his wife4

filed another petition for review. We have jurisdiction over the petition pursuant to INA § 242(a)(1) [8 U.S.C. § 1252(a)(1)]. But, as w e have repeatedly held, the failure to identify or argue an issue in an opening brief constitutes waiver of that issue on appeal. See, e.g. , Bradley v. Att’y
Gen. , 603 F.3d 235, 243 n.8 (3d Cir. 2010)

. The dispositive is sue in this case is whether the Board properly concluded that Ralda and his wife are statu torily in eligible for cancellation of removal. That determination turns on whether Ralda was convicted of a crime involving moral turpitude , INA § 240A(b)(1)( C), and whether his wife had continuously been in the United States for the required 10 years , IN A § 240A(d)(1)

. Significantly, however, the petitioners’ counseled brief entirely fails to address the se questions . Instead, the petitioners focus on whether “[t]he [IJ] erred as a matter of law in the standard . . . used to determine that [Ralda] was st atutorily inel igible for” relief under NACARA. As the Government points out, though, we have already held that we lack jurisdiction to review the factual determination that Ralda failed to timely register for NACARA relief and we rejected his contention t hat he was not provided with an opportunity to testify

. Ralda , 441 F. App’x at 103

- 04. Under these circumstances, we conclude that the petitioners have waived any challenge to the BIA’s conclusion that they are ineligible for cancellation of removal unde r INA § 240A(b)(1). Singh v. Gonzales , 406 F.3d 191, 195 n.5 ( 3d Cir. 2005). For the foregoing reasons, we wi ll deny the petition for review.