FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MAURICIO ALANNIZ,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 15-72792

Agency No.

A073-815-349

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 12, 2019*

Pasadena, California

Filed May 20, 2019

Before: Dorothy W. Nelson and Consuelo M. Callahan,

Circuit Judges, and Edward R. Korman,** District Judge.

Opinion by Judge Callahan

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Edward R. Korman, United States District Judge for

the Eastern District of New York, sitting by designation.
2 ALANNIZ V. BARR

SUMMARY***

Immigration 

On petition for review of a decision of the Board of

Immigration Appeals, the panel denied Jose Alanniz’s

challenge to the pretermission of his application for

cancellation of removal, holding that parole into the United

States under 8 U.S.C. § 1182(d)(5) is not an “admission in

any status” for purposes of meeting the residency requirement

for cancellation of removal, and remanded his asylum

application for further fact-finding.

To be eligible for cancellation of removal for certain

permanent residents, an applicant must establish, as relevant

here, that he or she has “resided in the United States

continuously for 7 years after having been admitted in any

status.” Because Alanniz’s period of residency was deemed

to end when he was convicted of a drug offense in 2006, he

had to show that he had been “admitted in any status” by at

least 1999. Although Alanniz did not adjust to lawful

permanent resident status until 2000, he contended that he

met the residency requirement because his 1997 grant of

parole constituted being “admitted in any status.” The BIA

rejected that contention and found him ineligible for

cancellation.

The panel held that Alanniz’s parole was not an

admission and, therefore, he was not “admitted in any status”

until his later adjustment to lawful permanent resident status. 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ALANNIZ V. BARR 3

The panel explained that it was bound by Medina-Nunez v.

Lynch, 788 F.3d 1103 (9th Cir. 2015), in which this court

deferred to the BIA’s reading of “admitted in any status” as

meaning that a person has been “admitted,” as defined in

8 U.S.C. § 1101(a)(13)(A). In Medina-Nunez, the court also

deferred to the BIA’s decision that acceptance into the Family

Unity Program was not such an admission. Because the court

held in Medina-Nunezthat the BIA’s determination that even

a specialized parole, such as acceptance into the Family Unity

Program, did not constitute an admission, the panel concluded

that Alanniz could not prevail on his argument that his 1997

parole constituted an admission. Accordingly, the panel

concluded that Alanniz failed to obtain the seven years of

continuous residency required for cancellation.

The panel also rejected Alanniz’s contention that his case

should be remanded on the ground that his 1997 parole

document was not part of the administrative record, and held

that Alanniz’s brief to the BIA did not challenge the denial of

relief under the Convention Against Torture. 

Finally, the panel acceded to the parties’ request to

remand Alanniz’s asylum claim to the agency to allow an

Immigration Judge to undertake the initial fact-finding

necessary to determine the viability of Alanniz’s proposed

group, as defined by Alanniz.

COUNSEL

Mackenzie W. Mackins, Mackins & Mackins LLP, Sherman

Oaks, California, for Petitioner.
4 ALANNIZ V. BARR

M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie

McKay, Assistant Director; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

CALLAHAN, Circuit Judge:

Jose Alanniz, a native and citizen of Mexico, entered the

United States without inspection in 1986, received parole in

1997, and adjusted to lawful permanent resident (“LPR”)

status in 2000. He was convicted of a crime involving

cocaine in 2006. He admitted to being removable, but

asserted that he was eligible for cancellation of removal based

on continuous residency in the United States for more than

seven years. The Board of Immigration Appeals (“BIA”)

affirmed the Immigration Judge’s (IJ) pretermission of his

application for cancellation of removal holding that Alanniz’s

continuous residency did not commence with the 1997 parole,

but with his 2000 adjustment to LPR status. We agree and

affirm the pretermission of his application for cancellation of

removal. However, at the parties’ mutual request, we remand

Alanniz’s asylum application for the fact-finding necessary

to determine the viability of Alanniz’s proposed social group.

I

Alanniz, a native and citizen of Mexico, was born on

March 19, 1982. He claims that his parents brought him into

the United States without inspection in 1986. He adjusted his

status to LPR in August 2000. At the time of his removal

hearing, he was unmarried and had four United States citizen
ALANNIZ V. BARR 5

children (born in 2000, 2003, 2005, and 2009). His parents

and siblings are either citizens or LPRs.

A parole document dated October 10, 1997, paroled

Alanniz “into the country for adjustment of status purposes,

. . . until October 9, 1998.”1 Although this document was not

placed in the certified record of this petition for review,

Alanniz’s primary contention before us is that the document

constitutes an “admission” into the United States for the

purpose of beginning the seven years of continuous residence

necessary to qualify for discretionary cancellation of removal

pursuant to 8 U.S.C. § 1229b(a)(2).

In 2002, Alanniz was convicted of possession of a

controlled substance, cocaine, in violation of California law

and sentenced to three years probation. Then in 2006,

Alanniz was convicted of violating a California criminal

statute by being under the influence of cocaine and sentenced

to 140 days in jail. Removal proceedings were initiated

against Alanniz in 2012 based on his 2002 conviction. At the

1 At a hearing before an IJ on April 23, 2012, counsel for the

Department of Homeland Security (“DHS”) stated:

In fact, off the record we went through the whole file to

see if there was any other lawful entry and this is the

only one. This is the earlier of the two. There was, so

this one was issued on October 10, 1997. And he

actually used the October 12, 1997 and it was a parole

document paroling him into the country for adjustment

of status purposes, paroled until October 9, 1998. And

then I did see another application for travel on the Form

I-131 and that was approved March 16, 1999. So that’s

after. So this is the, and there is no evidence that, that

one was used. So, the October 10, 1997 is the earliest

document that I found.
6 ALANNIZ V. BARR

conclusion of a June 12, 2012 hearing before an IJ, the IJ

issued an oral decision sustaining the charge of removability

and ordering Alanniz removed to Mexico. Alanniz appealed

to the BIA which dismissed his appeal, and he then filed a

petition for review with the Ninth Circuit.

While his petition was pending before the Ninth Circuit,

Alanniz filed a motion to reopen with the BIA asserting that,

in October 2012, a California Superior Court had amended

the 2002 criminal complaint against Alanniz so that it no

longer identified the controlled substance. The BIA granted

reopening, vacated its previous order, and remanded the case

to the IJ for further proceedings. We then dismissed

Alanniz’s petition for review for lack of jurisdiction.

In the reopened proceedings, DHS amended the Notice to

Appear substituting Alanniz’s 2006 drug conviction for the

2002 conviction. In a January 22, 2014 order, the IJ denied

Alanniz’s requests for relief. Alanniz admitted that he was

removable but sought cancellation of removal, asylum, and

relief under the Convention Against Torture (“CAT”).

The IJ granted DHS’s motion to pretermit Alanniz’s

application for cancellation of removal. The IJ was not

persuaded by Alanniz’s argument that his 2002 conviction no

longer disqualified him from cancellation of removal, but

found that it was “undisputed” that Alanniz had been

convicted of a controlled substance related offense in 2006,

and that the substance had been cocaine.2 Accordingly, to be

2 Alanniz argued that the removal of the reference to cocaine in his

2002 conviction made the conviction inconclusive as to the identity of the

substance and rendered him eligible for cancellation of removal, citing

Moncrieffe v. Holder, 569 U.S. 184 (2013). Respondent does not agree
ALANNIZ V. BARR 7

eligible for cancellation, Alanniz had to show “that he was

‘admitted’ and resid[ed] in the U.S. since at least 1999.” 

However, the IJ found that his initial entry was without

inspection, and his “first ‘admission’ was when he adjusted

his status to a lawful permanent resident on August 3, 2000.”

The IJ proceeded to deny Alanniz’s request for asylum

noting that, even accepting that he provided credible

testimony, Alanniz’s concern that “he will be targeted for

harm by the drug cartels and other criminals in the country”

was a generalized fear of harm by criminals and not harm on

account of a protected ground. The IJ also denied relief under

the CAT noting that there was “no claim or evidence that the

respondent was harmed, much less tortured in the past.”

Alanniz’s appeal to the BIA was dismissed on August 11,

2015. The BIA agreed with the IJ that Alanniz was

statutorily ineligible for cancellation of removal because his

2006 conviction came before he had achieved seven years of

continuous presence in the United States. The BIA stated: “A

grant of parole pursuant to section 212(d)(5)(A) of the Act

‘shall not be regarded as an admission of the alien.’”3

that Alanniz’s 2002 conviction does not trigger the stop-time rule. 

Respondent, however, maintains that “the issue simply is not before the

Court because although the immigration judge decided the issue against

Mr. Alanniz . . . the Board did not reach that issue in view of its

dispositive determination that the 2006 drug offense was sufficient to stop

Mr. Alanniz’s accrual of continuous residence.”

3

 8 U.S.C. § 1182(d)(5)(A) states:

The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this title, in

his discretion parole into the United States temporarily

under such conditions as he may prescribe only on a
8 ALANNIZ V. BARR

The BIA also denied Alanniz’s application for asylum

noting that he had “defined his particular social group based

upon his assertion that members of the group are subject to

kidnappings and extortion upon arrival in Mexico.” It held

that it is “well established” that asylum cannot be based on

“fear of harm resulting from general conditions of violence

and civil unrest affecting the home country’s populace as a

whole.” Finally, the BIA noted that Alanniz had not

challenged the IJ’s determination that he was not eligible for

protection under the CAT. Alanniz filed a timely petition

with this court on September 9, 2015.

II

We review only the BIA’s decision except to the extent

the decision adopts or relies on the IJ’s reasoning, in which

case we review both the IJ’s and the BIA’s decisions. 

Agyeman v. INS, 296 F.3d 871, 876 (9th Cir. 2002); Saldivar

v. Sessions, 877 F.3d 812, 814 (9th Cir. 2017). We review

the BIA’s determination of questions of law de novo, subject

to established principles of deference. See Hernandez de

Anderson v. Gonzales, 497 F.3d 927, 932, 934 (9th Cir. 2007)

case-by-case basis for urgent humanitarian reasons or

significant public benefit any alien applying for

admission to the United States, but such parole of such

alien shall not be regarded as an admission of the alien

and when the purposes of such parole shall, in the

opinion of the Attorney General, have been served the

alien shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall

continue to be dealt with in the same manner as that of

any other applicant for admission to the United States.

(emphasis added).
ALANNIZ V. BARR 9

(we “review de novo claims of due process violations in

immigration proceedings” and “defer to an agency’s

interpretation of its own regulation when that interpretation

is neither clearly erroneous nor inconsistent with the

regulation.”) (quotation marks omitted).

A. Alanniz has not shown that his 1997 parole

constitutes an “admission in any status” as that

term is used in 8 U.S.C. § 1229b(a)(2).

Title 8 U.S.C. § 1229b(a) allows the Attorney General to

cancel the removal of certain permanent residents who have

“resided in the United States continuously for 7 years after

having been admitted in any status” and have “not been

convicted of any aggravated felony.” Section 1229b(d)(1)

provides that the “period of continuous residence or

continuous physical presence in the United States shall be

deemed to end . . . when the alien has committed an offense

referred to in section 1182(a)(2) of this title that renders the

alien inadmissible to the United States. . . .” Alanniz does not

contest that his 2006 conviction, specifying the controlled

substance for which he was convicted, makes the conviction

one that is referred to in § 1182(a) and renders Alanniz

removable under § 1227(a)(2). Accordingly, Alanniz’s

eligibility for cancellation of removal turns on whether he

accrued the requisite seven years of continuous residence

prior to his violation of California law on February 4, 2006,

for being under the influence of cocaine.

Alanniz contends that he meets the residency requirement

because his 1997 parole constitutes “admitted in any status”

as that term is used in § 1229b. He recognizes that 8 U.S.C.

§ 1101(a)(13)(A) defines “admission” and “admitted” to

mean “the lawful entry of [an] alien into the United States
10 ALANNIZ V. BARR

after inspection and authorization by an immigration officer.” 

8 U.S.C. § 1101(a)(13)(A). But he asserts that in Garcia v.

Holder, 659 F.3d 1261 (9th Cir. 2011), and Garcia-Quintero

v. Holder, 455 F.3d 1006 (9th Cir. 2006), we gave

“admission in any status” a broader meaning.

It is true that in Garcia-Quintero, “we concluded that

Garcia-Quintero’s acceptance into the Family Unity Program

(“FUP”) rendered him ‘admitted in any status’ for purposes

of eligibility for cancellation of removal,” Garcia, 659 F.3d

at 1269. But we explained in Guevara v. Holder, 649 F.3d

1086 (9th Cir. 2011), that this was because “the FUP was

enacted by Congress to assist a very narrow group of aliens,”

and we declined to extend “admitted in any status” to all

“aliens who receive employment authorization.” Id.

at 1092–93.

In Garcia, we held that Garcia’s parole as a Special

Immigrant Juvenile (“SIJ”), like Garcia-Quintero’s

enrollment in FUP, constituted “admitted in any status” and

thus Garcia was eligible for cancellation of removal under

§ 1229b(a)(2). 659 F.3d at 1272. However, we emphasized

that Congress had extended certain protections to the “narrow

groups” of FUP participants and SIJ parolees, and that our

holding did not extend to broader groups. Id. at 1271. Thus,

because our judicial expansion of “admitted in any status”

was based on unique features of the FUP and SIJ programs,

it is doubtful that they support Alanniz’s contention that his

1997 parole constituted an admission.

But that question is only of academic interest because

Garcia and Garcia-Quintero have been repudiated by the

BIA and we have accepted the BIA’s narrower reading of

“admitted in any status” as reasonable.
ALANNIZ V. BARR 11

In re Reza-Murillo, 25 I. & N. Dec. 296 (BIA 2010),

presented a similar situation to that faced by Garcia-Quintero. 

Reza-Murillo was granted LPR status in August 2001, and

committed a crime involving moral turpitude in November

2001. Id. at 296–97. He argued that he nonetheless was

eligible for cancellation of removal because his continued

residence in the United States started when he was granted

benefits under the FUP in 1994. Id. The BIA rejected this

argument and rejected the Ninth Circuit’s analysis in GarciaQuintero. Id. at 298. The BIA cited 8 U.S.C.

§ 1101(a)(13)(A) as defining “‘admitted’ as ‘the lawful entry

of the alien into the United States after inspection and

authorization by an immigration officer.’”4

Id. at 297. It

determined that declining to treat a grant of FUP benefits as

an “admission” was “consistent with the statutory scheme and

does not create absurd or bizarre results.” Id. at 299. 

Accordingly, the BIA declined “to deem a grant of FUP

benefits to be an ‘admission’” and dismissed Reza-Murillo’s

appeal. Id. at 299–300.

In Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015),

we acknowledged that Reza-Murillo was contrary to Garcia4

 The BIA commented that

[t]he Act’s favorable treatment of aliens granted lawful

permanent resident status does not suggest that aliens

granted any lesser immigration status should be deemed

to have been “admitted” by virtue of obtaining that

lesser status while present in the United States. Such a

conclusion would effectively redact the words “entry of

the alien into the United States after” from the

definition of “admission” in section 101(a)(13)(A) of

the Act.

Reza-Murillo, 25 I. & N. Dec. at 299.
12 ALANNIZ V. BARR

Quintero, and accepted the BIA’s ruling as controlling. We

explained:

We also have no trouble concluding that the

BIA’s decision in In re Reza-Murillo is

“otherwise entitled to Chevron deference.”

[National Cable & Telecommunications Ass’n

v. Brand X Internet Servs., 545 U.S. 967, 982

(2005) (“Brand X”)]. It is reasonable for the

BIA to apply the statutory definition of the

term “admitted.” Nothing in the statutory

text, the BIA’s cases, or our own cases

precludes the BIA from relying on that

definition.

Pursuant to Brand X, we must afford Chevron

deference to the BIA’s decision in In re RezaMurillo holding that acceptance into the

Family Unity Program does not constitute an

admission for purposes of § 1229b(a)(2). The

BIA therefore correctly denied Petitioner’s

application for cancellation of removal.

Medina-Nunez, 788 F.3d at 1105–06; see also Lopez v. Lynch,

610 F. App’x 668, 668–69 (9th Cir. 2015) (unpublished)

(acknowledging abrogation of Garcia-Quintero).

We are bound by Medina-Nunez. Miller v. Gammie,

335 F.3d 889, 899–900 (9th Cir. 2003) (en banc); OlivasMotta v. Whitaker, 910 F.3d 1271, 1275 (9th Cir. 2018)

(holding that a three-judge panel “has no power to overrule

circuit precedent”). Because we have held the BIA’s

determination that even a specialized parole, such as

acceptance into the FUP program, does not constitute an
ALANNIZ V. BARR 13

admission, Alanniz cannot prevail on his argument that his

1997 parole constitutes an admission under § 1229b(a)(2).

Moreover, this holding is consistent with case law

upholding 8 U.S.C. § 1101(a)(13)(B) which states that “an

alien who is paroled under section 1182(d)(5) . . . shall not be

considered to have been admitted.” Similarly,

§ 1182(d)(5)(A), which confers upon the Attorney General

the authority to parole aliens into the United States, provides

that “such parole of such alien shall not be regarded as an

admission of the alien.” We have previously held that

pursuant to these statutes, an individual paroled pursuant to

§ 1182(d)(5) has not been admitted into the United States. 

See, e.g., Altamirano v. Gonzales, 427 F.3d 586, 590–91 (9th

Cir. 2005) (agreeing with the government that parole status

under § 1182(d)(5)(A) shall not be regarded as an admission);

see also Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)

(stating that “[t]he parole of aliens seeking admission is

simply a device through which needless confinement is

avoided . . . was never intended to affect an alien’s status,”

and to hold that a noncitizen’s parole placed him legally

within the United States “is inconsistent with the

congressional mandate, the administrative concept of parole,

and the decisions of this Court.”). Accordingly, pursuant to

our opinion in Medina-Nunez, as well as judicial precedent

construing 8 U.S.C. §§ 1101(a)(13)(B) and 1182(d)(5),

Alanniz’s 1997 parole was not an admission for purposes of

§ 1229b.
14 ALANNIZ V. BARR

B. Alanniz is not entitled to any relief because the

administrative record does not include his 1997

parole document.

Alanniz asserts that his case should be remanded because

it is unclear what manner of parole he was granted on

October 12, 1997. He argues that 8 U.S.C. § 1229a(b)(4)(C)

imposes a duty upon the government to keep a complete

administrative record and the type of parole is “critical to the

larger question of his eligibility for relief from removal.” He

posits that we cannot make a reasoned decision without this

information. The argument is not persuasive for several

reasons.

First, Respondent makes a sound argument that Alanniz

has forfeited any objection concerning the status of the

administrative record because he did not object to the absence

of the 1997 parole document from the record either before the

IJ or the BIA. See 8 U.S.C. § 1252(d)(1) (providing that a

court may review a final order of removal “only if . . . the

alien has exhausted all administrative remedies available to

the alien as of right.”). In the agency proceedings, Alanniz

was allowed to argue on the existing record that his 1997

parole constituted an admission, and he never objected to the

fact that the document was not in the record. Alanniz should

not now be allowed to challenge the sufficiency of the record.

Second, Alanniz overstates Respondent’s responsibility

for producing information. We have held that “[i]n the

removal context, the government bears the burden of

establishing deportability,” but that the “REAL ID Act places

the burden of demonstrating eligibility for cancellation of
ALANNIZ V. BARR 15

removal squarely on the noncitizen.”5 Young v. Holder,

697 F.3d 976, 988–89 (9th Cir. 2012) (en banc), abrogated in

part on other grounds by Moncrieffe v. Holder, 569 U.S. 184

(2013); see also Gutierrez v. Sessions, 887 F.3d 770, 779 (6th

Cir. 2018) (holding that “[o]nce her removability has been

demonstrated, for which the government bears the burden of

proof, . . . it is the applicant for relief who must ‘prov[e] by

a preponderance of the evidence that potential grounds for

mandatory denial of . . . relief’ in fact ‘do not apply’ in her

case.”). The record contains the evidence on which the

government sought Alanniz’s removal. Alanniz does not

allege that the record is incomplete.6 Thus, because it was

Alanniz’s burden to establish his eligibility for cancellation

of removal, he cannot complain that the government failed to

produce the 1997 parole document, which he never requested.

Third, Alanniz has not shown that the absence of the 1997

parole document from the record was in any way prejudicial. 

See Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.

2005) (“For us to grant the petition for review on due process

grounds, Petitioner must show prejudice, which means that

the outcome of the proceeding may have been affected by the

alleged violation.”) (quotation marks and emphasis omitted). 

Alanniz does not contest the evidence in the record that at his

5

8 U.S.C. § 1229a(c)(4) states that “[a]n alien applying for relief or

protection from removal has the burden of proof to establish that the

alien—(i) satisfies the applicable eligibility requirements; and (ii) with

respect to any form of relief that is granted in the exercise of discretion,

that the alien merits a favorable exercise of discretion.”

6 Section 1229a(b)(4)(C) provides that “a complete record shall be

kept of all testimony and evidence produced at the proceeding.” Alanniz

does not allege that the administrative record does not include all the

evidence that was actually produced.
16 ALANNIZ V. BARR

2012 hearing his attorney reviewed the parole document and

demurred to Respondent’s statement that it was a Form I-131

application to allow travel. Moreover, Alanniz offers no

suggestion as to how the particular language in the 1997

document would have any impact on his case. Indeed, under

our controlling precedent of Medina-Nunez, it does not matter

what type of parole issued in 1997, because whatever its

nature it does not constitute an admission.

In sum, even if Alanniz has not forfeited his right to

challenge the absence of the 1997 parole document from the

record, he is not entitled to relief because (a) it was his

responsibility to request the document, which he failed to do,

and (b) the absence of the document was not prejudicial to

Alanniz.

III

Alanniz asserts that the BIA erred in holding that he did

not challenge the IJ’s determination that he was not eligible

for protection under the CAT. He cites 8 C.F.R.

§ 1208.13(c)(1) as providing that asylum applications filed

after April 1, 1997 “shall also be considered for eligibility for

withholding of removal under the Convention Against

Torture if the applicant requests such consideration or if the

evidence presented by the alien indicates that the alien may

be tortured in the country of removal.” Alanniz claims that

he mentioned the CAT in his brief to the BIA, and that he

need not use precise legal terminology or provide a welldeveloped argument to meet the exhaustion requirement.

The BIA properly found that Alanniz did not challenge

the IJ’s determination that he was ineligible for protection
ALANNIZ V. BARR 17

under the CAT.7 We have held that where an applicant files

a brief before the BIA, “the BIA is entitled to look to the brief

for an explication of the issues that petitioner is presenting to

have reviewed. Petitioner will therefore be deemed to have

exhausted only those issues he raised and argued in his brief

before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208

(9th Cir. 2009) (en banc). A review of Alanniz’s brief to the

BIA confirms that he did not argue that he was entitled to

relief under the CAT.8 Moreover, it does not appear that

Alanniz has proffered any evidence of past torture. Alanniz

has not shown that the BIA erred in concluding that he had

not challenged the IJ’s denial of relief under the CAT.

IV

Alanniz also argues that the IJ mischaracterized his

proposed social group as “returning Mexicans fromthe U.S.,”

and that he alleged a narrower group consisting of Mexican

long-term residents of the United States, not Mexicans from

the United States generally. The BIA redefined the group as

“long term residents of the U.S. who have been deported to

Mexico and will be subject to kidnappings and extortion upon

arrival in Mexico.” Alanniz objects that this amounted to

improper fact-finding, which the BIA is not entitled to do,

and contends that this issue should be remanded so that the IJ

can address the social group proposed by Alanniz.

7 Alanniz’s reliance on 8 C.F.R. § 1208.31(c) is misplaced. The

regulation addresses the scope of an application for asylum, but does not

allow an applicant to reassert before us an issue he did not raise before the

BIA.

8

 The CAT was mentioned only twice in Alanniz’s brief to the BIA,

in the introduction and in the conclusion. The brief contained no

argument for relief under the CAT.
18 ALANNIZ V. BARR

Respondent concedes that the IJ mischaracterized

Alanniz’s proposed social group as “returning Mexicans from

the United States,” when Alanniz had defined his proposed

group as “long term residents of the U.S. who have been

deported to Mexico and will be subject to kidnappings and

extortion upon arrival in Mexico.” Respondent asserts that

whether a proposed social group constitutes a particular social

group is a question of law, but the cognizability of a putative

social group also contains factual issues, citing Pirir-Boc v.

Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). Respondent

requests a remand of Alanniz’s request for asylum “so that

the agency may conduct a case-specific analysis of the

documentary evidence Mr. Alanniz submitted to the

immigration judge.”

Because the proposed group as understood by the IJ is

somewhat different from the group proffered by Alanniz, we

accede to the parties’ request and remand this issue to the

agency. Alanniz is entitled to have the IJ first consider the

facts that define his proposed group, and neither the BIA nor

the Ninth Circuit is authorized to undertake the initial factfinding necessary to determine the viability of the group. See

INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (stating the

general rule that “a court of appeals should remand a case to

an agency for decision of a matter that statutes place

primarily in agency hands”); 8 C.F.R. § 1003.1(d)(3)(iv)

(stating that the BIA “will not engage in factfinding in the

course of deciding appeals”).

V

We hold that our acceptance in Medina-Nunez, 788 F.3d

1105, of the BIA’s definition of “admitted in any status” in

Reza-Murillo, 25 I. & N. Dec. at 298–99, compels the
ALANNIZ V. BARR 19

conclusion that Alanniz’s 1997 parole did not constitute an

“admission.” It follows that, because Alanniz was not

“admitted in any status” until his adjustment to LPR in 2000,

and because he was convicted for being under the influence

of cocaine in 2006, he had not obtained the requisite seven

years of continuous residency in the United States to be

eligible for cancellation of removal under 8 U.S.C. §1229b. 

The BIA properly determined that Alanniz is not eligible for

cancellation of removal.

To the extent that Alanniz’s failure to object before the IJ

or the BIA to the absence of the 1997 parole document from

the record does not constitute a forfeiture of his right to raise

the issue, his objection is not meritorious. Requesting the

production of the document was part of his burden to

demonstrate eligibility for cancellation of removal. 

Moreover, Alanniz has failed to show any prejudice from the

absence of the parole document because the 1997 parole did

not constitute an “admission” regardless of the nature of the

parole. We also hold that the BIA properly determined that

Alanniz’s brief to the BIA did not challenge the IJ’s denial of

relief under the CAT. See Abebe, 554 F.3d at 1208.

Finally, we accede to the parties’ request to remand

Alanniz’s asylum claim to the agency to allow an IJ to

undertake the initial fact-finding necessary to determine the

viability of Alanniz’s proposed group, as defined by Alanniz.

Alanniz’s challenge to the pretermission of his application

for cancellation of removal is DENIED and his asylum

application is REMANDED for further fact-finding. Each

side shall bear its own costs.