FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J O S E M A

UR I C I O A LA

N NI Z , Petitioner ,

v

.
W I L L IAM P. B AR

R , Attorney General, Respondent. No. 15-72792

Agency No. A073-815-349

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

Subm itted February 12, 2019 * Pasadena, California
Filed May 20, 2019
Before: Dorothy W . Nelson and Consuelo M. Callahan, Circuit Judges, and Edward R. Korm an, * * District Judge.

Opinion by Judge Callahan

* The panel unanim ously concludes this case is suitable for decision without oral argum ent. SeeFed. R. App. P. 34(a)(2).

** The Honorable Edward R. Korm an, United States District Judge f o r the Eastern District of New York, sitting by designation.A LA N NI Z V

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S UMMARY * * *

Immigration

On petition for review of a deci s i o n of the Board o f Imm igration Appeals, the panel d e nied Jose Alanniz’s challenge to the p reterm ission of h is application for cancellation of rem oval, hol d i n g that parole into the United States under 8 U.S.C. § 1182(d)(5) is not an “adm iss i o n in any status” for purposes of m eeting the residency req u irement for cancellation of rem oval, and rem an d e d h is asylum application for further fact-finding.

To be eligible for cancellation of rem oval for certa i n perm anent residents, an applicant m u st establish, as relevant here, that he or she has “ resided in the United States continuously for 7 years after havin g b e e n adm itted in any status.” Because Alanniz’s period of residency was deem ed to end when he was convicted of a d rug offense in 2 006, he had to show that he had bee n “adm itted in any status” b y at least 1999. Although Alanniz did not adju s t t o lawful perm anent resident status until 2000, he contended that he

m et the residency requirem ent because h i s 1997 grant o f par o l e constituted being “adm itted in any status.” The B IA rejected that contention and found h i m ineligible for cancellation.

The p anel held that A lanniz’s parole was not an adm ission and, therefore, he was not “adm itted in any status” until his later adjustm ent to lawful perm anent resident status.

*** This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.A LA N NI Z V

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The panel explained that i t was bound by Medina-Nunez v. Lynch
, 788 F.3d 1103 (9th Cir. 2015), in wh ic h this court deferred to th e BI A’ s reading of “adm itted in any status” as
m eaning that a p erson has been “adm itted,” a s d e fi n ed 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 Fam ily Unity Program was not such an adm ission. Because the court held in Medina-Nunez that the BIA’s determ ination that even
a specialized parole, such as acceptance into the Fam ily Unity P ro gram , d id n ot constitute an adm ission, the panel c o n clu d ed that Alanniz could not p revail on his argum ent that his 1997 parole constituted an adm ission. Ac cordingly, the panel concluded that Alanniz failed to obtain the seven years o f continuous residency required for cancellation.

The panel also rejected Alanniz’s contention that h is case should be rem anded on the ground that his 1997 parole docum ent was not part of the adm inistrative record, and held that Alanniz’s brief to the BIA d id not challenge the denial o f relief under the Convention Against Torture.

Fi n a lly, the panel acceded to the parties’ request to

rem and Alanni z ’s asylum claim to the agency to allow an Imm igration Judge to un d e rtake the initial fact-finding

necessary to determ ine the viability of Alanniz’s proposed group, as defined by Alanniz.

C OUNSEL

Mackenzie W

. Mackins, Mackins & Mackins LLP, Sherm an Oaks, California, for Petitioner.A LA N NI Z V

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M. Jocelyn Lopez Wright, S enior Litigation Counsel; Leslie McKay, Assistant Directo r; O ffice of Imm igration L itigation, Civil Division, United States D ep artment of Justice, W ashington, D.C.; for Respondent.

OPINION
CALLAHAN, Circuit Judge:

Jose A lanniz, a n ative and citizen o f Mexico, entered the United States without inspection in 1986, received parole in 1997, and adjusted to lawful perm anent resident (“LPR”) status in 2000. He was convicted of a c r i me involving

c o c a ine in 2006. H e adm itted to being rem ovable, b ut asserted that he was eligible for cancellation of rem oval based

on continuous residency in the United States for m ore than

seven years. The Board of Imm igration Ap p eals (“BIA”) affirm ed the Imm igration Judge’s ( I J) preterm ission of his ap p lication f

o r cancellation of rem oval holding that Alanniz’s continuous residency did n o t co m m en ce w ith the 1997 parole, but with his 2000 adjustm ent to LPR sta tu s

. We agree and affirm the p reterm ission of his application for cancellation o f

rem oval. However, at the parties’ m utual request, we rem and Alann iz’s asylum application for the fact-finding necessary to determ ine the viability o f Alanniz’s proposed social group.

I

Alanniz, a native an d citizen of Mexico, was born on March 1 9, 1982. He claim s that his parents brought h im into the United States without inspection in 1986. He adjusted his statu s to LPR in August 2000. At the tim e of his rem oval hearing, he was unm arried and had four United States citizenA LA N NI Z V

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children (born in 2000, 2003, 2005, and 2009). His parents and siblings are either citizens or LPRs.

A parole docum ent d ated October 10, 1997, paroled Alanniz “into the country for adjustm ent of status p ur p o ses,

. . . until October 9, 1998.” 1 A lthough this docum ent was not placed in the certified record of thi s pe t i tion for review, Alanniz’s prim ary contention before us is that the docum ent constitutes an “adm ission” into the United States for the purpose of beginning the seven years o f continuous residence necessary to qualify for discretionary cancellation of rem oval pursuant to 8 U.S.C. § 1229b(a)(2).

In 2 002, Alanniz w as convicted of possession o f a controlled substance, cocaine, in v iolati o n of California law

an d sentenced to three years probation. Then in 20 0 6
, Alanniz wa s c o nv icted of v iolating a California crim inal statute by being under the influence of cocaine and sentenced to 140 days in jail. Re m oval p roceedings were initiated against Alanniz in 2012 based on his 2002 conviction. At the

1 A t a h earing before an IJ on April 2 3, 2012, counsel f o r the Departm ent of Hom eland Security (“DHS”) stated:

In fact, off t

he r ecord we went t

hrough t he whole file to

s e e if there was any other lawful entry and this i s the only one. This is the earlier of t he two. There was, so this one was issued on Oc t o b e r 1 0, 1997. And he actually used the October 12, 1997 and it was a parole docum ent paroling him into the country for adjustm ent of status purposes, paroled until October 9, 1998. And then I did see another application for t ravel 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 docum ent that I found.A LA N NI Z V

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c onclusion of a June 12, 2012 hearing before an IJ, the IJ issued an oral d ecision sustaining the charge of rem ovability and ordering Alanniz rem oved to Mexico. Alanniz appealed to the BIA which dism issed his appeal, and he the n fi l ed a petition for review with the Ninth Circuit.

While his petition was pending before the Ninth Circuit, Alanniz f iled a m otion to reopen w ith the BIA asserting that, in October 2012, a California Superior Court had am ended the 2002 crim inal com

plaint against Alanniz so that it no longer identified the controlled substance. The B IA granted reopening, vacated its previous order, and rem anded the case t o the IJ for further proceedings. W e then dism isse d Alanniz’s petition for review for lack of jurisdiction.

In the reopened proceedings, DHS am ended the Notice to Appear substituting Alanni z ’ s 2 006 drug conviction for the 2002 conviction. In a January 22, 2014 ord e r , the IJ denied Alanniz’s requests for relief. Alanniz adm itted that he was
rem ovable but sought c ancellation of rem oval, asylum
, and relief under the Convention Against Torture (“CAT”).

The IJ granted DHS’s m otion to preterm it Al ann i z ’s application for cancellation of rem oval. The IJ wa s not persuaded by Alanniz’s argum ent that his 2002 conviction no longer disqualified h im from can c e llation of rem oval, but found that it was “undisputed” that Alann i z h a d been

conv icted of a controlled substance related offense in 2006, and that the substance had been cocaine. 2 Accordingly, to be

2 A l anniz argued that t

he r em oval of the reference to cocaine in h is 2002 conviction m ade the conviction i nconclusive as to the identity of the substance and rendered him eligibl e fo r cancellation of rem oval, citing Moncrieffe v. Holder
, 5 6 9 U. S

. 184 ( 2013). Respondent does n ot agreeA LA N NI Z V

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eligible for can c e llation, Alanniz had to show “that he was

‘ a dm itted’ and resid[ed] in the U.S. since at least 1 9 9 9. ” However, the IJ found that his initia l entry was without i nspection, and his “first ‘adm ission’ w as when he adju s t e d his status to a lawful perm anent resident on August 3, 2000.”

The IJ proceeded to deny Alanniz’s request for asy l um noting that, ev e n a ccepting that he provided credible testim ony, Alanniz’s concern that “he wi l l b e targeted for harm by the drug cartels and other crim inals in the country”

was a g eneralized fear of harm b y crim inals and not harm on account o f a p rotected ground. The IJ also denied relief under the CAT noting that there was “no claim or evidence that the respondent was harm ed, m u ch less tortured in the past.”

Alanniz’s appeal to the BIA w as dism issed on August 11, 2015. The B I A a g r e e d w ith the IJ that Alanniz was statutorily ineligible for cancellation of rem oval b ecause his 2006 conviction cam e before he had achieved seven years o f continuous presence in the United States. The BIA stated: “A grant of par ol e p ursuant to section 212(d)(5)(A) of the A ct ‘shall not be regarded as an adm ission of the alien.’” 3

that Alanniz’s 2002 convi c tion does not trigger the stop-tim e rule. Respondent, however, m aintains th a t “the i ssue sim ply is not b efore the Court because although t

he im m igration judge d ecided the i s su e against M r. A l anniz

. . . the Board did not reach that issue in view o f i t s dispositive determ ination 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 A tt o rney General m ay, except as provided in subparagraph (B) or in section 1184(f) of t his title, in his discretion parole into the United States tem porarily unde r s uc h conditions as he m ay prescribe only on aA LA N NI Z V

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The B IA also denied Alanniz’s application fo r asylum noting that he had “defined his particular social group based up o n his assertion that m em bers o f the group are subject to k idnappings and extortion upon arrival in Mexico.” It h e l d that it is “well established” that asylum cannot be b ased on “fear o f harm resulting from g eneral condit ions of violence and civil unrest affecting the hom e c o untry ’s populace as a whole.” Finally, the BIA noted that A l ann i z had not challenged the IJ’s determ ination that he was not eligible for protection under the CAT. Alanniz fi l ed a tim ely petition with this court on September 9, 2015.

II

W e review only the BIA’s d ecision exc e p t to the extent the decision adopts or reli es 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 8 71, 876 (9th Cir. 2002); Saldivar

v. Sessions
, 877 F. 3 d 8 12, 814 (9th Cir. 2017). W e review the BIA’s determ ination of questions of law d e novo, subject to established princip l e s o f deference. See Hernandez de Anderson v. Gonzales
, 4 9 7 F .3d 927, 932, 934 (9th Cir. 2 007)

case-by-case basis for urgent hum anitarian reasons o r significant public benefit any alie n applying f o r adm i ssion to the United States, but such parole ofsuch alien shall not be regarded as an admission of t he alien and when the purposes of suc h parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith r eturn or b e returned to the custody from which he w as paroled and thereafter his case shall continue to b e dealt with in the sam e m anner as that o f any other applicant for admission to the United S tates.
(em phasis added).A LA N NI Z V

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(we “review de novo clai ms of due process violations in imm igration p r o ceedings” and “defer to an agency’s interpretation of its own r e g u l ation when that interpretation is neither clearly erroneous nor inconsistent with the regulation.”) (quotation m arks om itted).

A. Alanniz has not show n that his 19 97 parole constitutes an “admission in any st a t us ” a s 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 rem oval of certain perm anent residents who have “resided in the United States continuously for 7 years after having been adm itted in any status” and have “not been convicted o f any aggravated felony.” Section 1229b(d)(1) provides that the “period o f continuous residence o r continuous physical pre se n c e in the United States shall be deem ed to end

. . . when the a li e n has comm itted an o ffense referred to in section 1182(a)(2) o f this tit l e that renders the alien inadm issible to the United States.

. . .” Alanniz does not contest that hi s 2006 conviction, specifying the controlled substance for which he was convicted, m akes the conviction

one that is referred to in § 1182(a) and rend e r s Alanniz

rem ovable under § 1 2 27(a)(2). Accordi n g ly, Alanniz’s eligibility for cancellation of rem o val turns o n whether he accrued the requisite seven years o f continuous residence p rior to his violation of California law on February 4, 2 0 0 6
, for being under the influence of cocaine.

Alanniz contends that h e m eets the residency requirem ent because h is 1997 parole constitutes “adm itted in any status”

as that term is used in § 1229b. H e recognizes that 8 U.S.C. § 1101(a)(13)(A) de fi ne s “adm ission” and “adm itted” to

m ean “the lawful entry of [ an] alien into the United StatesA LA N NI Z V

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after inspection and authorization by an imm igration o fficer.” 8 U.S.C. § 1101(a)(13)( A)

. But he asserts that in Garcia v. Holder
, 659 F.3d 1261 (9th Cir. 2 0 11), and Garcia-Quintero

v. Holder
, 455 F.3d 1 00 6 (9 th Cir. 2006), we gave “adm ission in any status” a bro ader m eaning.

It is true that in Garcia-Quinter o , “ we concluded that Garcia-Quintero’s acceptance into the Fam ily Unity Program (“FUP”) rendered him ‘adm itted in any s t atu s ’ for purposes of eligibility f

or cancellation of rem oval,” Garcia
, 659 F.3d at 1 2 69. But we explained in Guevara v. Holder
, 6 49 F.3d 1086 (9th Cir. 2011), that this was b e c au se “the F UP was enacted b y Congress to assist a v ery narrow group o f aliens,” and we de clined to extend “adm itted in any status” to all “aliens who receive em ploym ent authorizatio n .” Id

. at 1092–93.

In Garcia
, we held that Garcia’s parole as a Specia l I mmi g r an t Juv e n i l e ( “ S I J ” )
, l i k e G a r c i a

- Q u i nt e r o ’ s enrollm ent in FUP, c o nstituted “adm itted in any status” and thus Garcia was e l igible for cancellation of rem o val under § 1229b(a)(2). 659 F.3d at 1272. However, we em phasized that Congress had extended certain protections to the “narrow groups” o f FUP participants and SIJ parolees, and that our holding did not extend to broader groups. Id

. at 1271. Thus, becau s e our judicial expansion of “adm itted in any status”

was based on unique features o f th e FUP and SIJ program s, it is doubtful that they support Alanniz’s contention that his 1997 parole constituted an adm ission.

But that question is only o f academ ic interes t because Garci a and Garcia-Quintero have been repudiated b y the BIA and we have acc epted the BIA’s narrower reading o f “adm itted in any status” as reas onable.A LA N NI Z V

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In re R eza-Murillo
, 25 I. & N. Dec. 296 (BIA 2010), presented a sim ilar situation to that faced by G arcia-Quintero. Reza-Murillo was granted LPR status in August 2001, and

comm itted a crim e involving m oral turpitude in Novem ber 2 00 1

. Id

. at 296–97. He argued that he nonethel e s s wa s eligible for cancellation of rem oval because h i s c ontinued residence in the United States started when he was granted benefits under the FUP in 1994. Id

. The BIA rejected this argum ent and rejected the N inth C ircuit’s analysis in GarciaQuintero

. Id

. at 298. T he BIA cited 8 U. S .C. § 1101(a)(13)(A) as defining “‘adm itted’ as ‘the lawful entry of the alien into the United States a f te r inspection and authorization by an imm igration officer.’” 4 Id

. at 297. It determ ined that declining to treat a grant of FUP benefits as

an “adm ission ” w a s “co n sistent with the statutory schem e and doe s n ot create absurd or bizarre results.” Id. at 299. Accordingly, the BI A d e clined “to deem a grant o f FUP benefits to be an ‘adm ission’” and d ism issed Reza-Murillo’s appeal. Id

. at 299–300.

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

we acknowledged that Reza-Murillo was contrary to Garcia4 The BIA comm ented that

[t]he Act’s favorable treatm ent o f aliens granted lawful perm anent resident status does n ot suggest that aliens granted any lesser im

m igration status should be d eem ed to have been “admi tted” b y v irtue of obtaini n g th at lesser status while present in the United States. Such a conclusion would effectively redact the words “entry o f the alien into th e U ni t ed States after” from the definition of “a dm ission” i n section 101(a)(13)(A) o f the Act.

Reza-Murillo , 25 I. & N. Dec. at 299.A LA N NI Z V

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Quintero , and accepted the BIA’s ruling as controlling. W e explained:

W e also have n o trouble con cl ud i ng that the BIA’s decision in In re Reza-Murillo is “otherwise entitled to Chevron deference.” [Na tio n a l C

a b le & T eleco m m u n ications Ass’n

v. Brand X Internet Servs
., 545 U.S. 967, 982 (2005) (“B rand X

”)]. It is reasonable for the BIA to apply the statutory definition of the term “adm itted.” N othing 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 m ust afford C

hevron deference to the BIA’s decision in In re RezaMurillo holding that ac c e p tance into the Fam ily Unity Program does not constitute an adm ission for purposes of § 1229b(a)(2). The BIA therefore correctl y denied Petitioner’s application for cancellation of rem oval.

Medina-Nunez
, 788 F.3d at 1 105–06; see also Lopez v. L yn ch
, 610 F

. App’x 66 8
, 6 68–69 (9th Cir. 2015) (unpublished) (acknowledging abrogation of Garcia-Quintero ).

W e are bound by Medina-Nunez

. Miller v. Gammie
, 335 F .3d 889, 899–900 (9th Ci r

. 2003) (en banc); O livasMotta v. Whitaker
, 910 F.3d 127 1
, 1 2 7 5 (9th Cir. 2 018) (holding that a three-judge panel “has no power to overrule circuit precedent”). Because we h ave h eld the BIA’s determ ination that even a specialized par o l e , such as acceptance in t o th e FUP program , does not constitute anA LA N NI Z V

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adm ission, Alanniz cannot prevail on h is argum ent that h is 1997 parole constitutes an adm ission under § 1229b(a)(2).

Moreover, this h olding i s c o nsistent with case law upholding 8 U.S.C. § 1 101(a)(13)(B) which states that “an alien who is paroled under section 1182(d)(5)

. . . shall not be

c o n s i d e r e d t o h a v e b e e n a d m i t t e d

. ” S i m i l a r l y , § 1182(d)(5 )(A), which confers upon the Attorney General the authority to parole aliens into the United States, p rovides that “such parole o f such alien shall n ot be regarded as an adm ission of the alien.” W e h ave pr e viously h eld that pursuant to these statutes, an individual paroled pursuant to § 1182(d)(5) has not b een adm itte d i nto the United States. See, e.g. , Altamirano v. Gonzales
, 427 F.3d 586, 590–91 (9th Cir. 2005) (agreeing with the governm ent that par o l e s tatus under § 1182(d)(5)(A) shall not be regarded as an adm ission);

see also Le ng M

a y Ma v. Barber
, 357 U.S. 185, 190 (1958) (stating that “[t]he p arole of aliens seeking adm ission is

s imp l y a device through which needless confinem ent is avoided

. . . was never intended to affect an alien’s status,” and to hold that a non c itizen’s parole placed him legally within the Un i t ed States “is inconsistent with the congressional m andate, the adm inistrative concept of parole, and the decisions of this Court.”). Accordingly, pursuant to

our opi n i o n in Medina-Nunez
, as w ell as judicial precedent construing 8 U.S.C. § § 1101(a)(13)(B) and 1182(d)(5), Alanniz’s 1 997 parole was not an adm ission for purposes o f § 1229b.A LA N NI Z V

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B. Alanniz is n ot entitled to any r e l ief because the administrative record does not include his 1997 parole document.

Alanniz asserts that his case should be rem anded because it is unclear what m anner of par o l e h e was granted on October 12, 1 997. He argues that 8 U.S.C. § 1229a(b)(4)(C) im poses a d uty up o n the governm ent to k eep a com p lete adm inistrative record and the type of parole is “critical to the larger q uestion of his eligibility for relief from rem oval.” He posits that we cannot m ake a reasoned d ecision without this inform ation. The argum ent is not p e r s u a s ive f o r several

reasons.
First, Respondent m akes a sound arg ume nt that Alanniz has fo r feited any objection concerning the status of the adm inistrative record because he did n ot o bject to the absence of the 1997 p arole docum ent from the record either before the IJ or the BIA. See 8 U. S. C. § 1 252(d)(1) (providing that a court m ay review a fina l o rd er of rem oval “only if

. . . the alien h as exh austed all adm inistrative rem edies available to the a l i e n as o f right.”). In the agency proceedings, Alanniz

was allowed to argue on th e e x is ting record that his 1997 parole constituted an adm ission, and he n ever objected to the fact that the docum ent w as not in the record. Alanniz should not now be allowed to challenge the sufficiency of the record.

Sec o n d, Alanniz overstates Respondent’s responsibility for producing info rmat i on. W e have held that “[i]n the

rem oval context, the gove rnme nt bears the burden o f establishing deportability,” but that the “REAL ID Act places the burden of dem onstrating eligibility for cancellation o fA LA N NI Z V

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rem oval squarely on the n oncitizen.” 5 Young v. H older
, 697 F.3d 976, 9 88–89 (9th C ir. 2012) (en banc), a brogated in part on other grounds by Moncrieffe v. H older
, 569 U.S. 184 (2013); see also Gutierrez v. Sessions
, 887 F.3d 770, 779 (6th Cir. 2 018) (holding that “[o]nce her rem ovabili ty has been dem onstrated, for which the governm ent bears the b urden o f proof,

. . . it is the applicant for r e l i ef who m ust ‘prov[e] by

a preponderance of the evidence that potential grounds for

m andatory denial of

. . . relief’ in f act ‘do not ap p l y ’ in her case.”). The record contains the evidence on wh i c h th e governm ent sought Alanniz’s rem oval

. Alanniz does not all eg e that the record is incom plete. 6 Thus, because it was Alanniz’s burden to establish his eligibility fo r c ancellation of rem oval, he cannot com plain that the g overnm ent failed to produce the 1997 parole docum ent, which he never req u ested

. Third, Alanniz has not shown that the absence of the 1997 parole docum ent from the record was in any way prejudicial. See Zolotukhin v. Go nzales
, 417 F.3d 1073, 1076 (9th Cir. 2005) (“For us to grant the petition for review on due process grounds, Petitioner m

u s t s h ow prejudice, which m eans that the outcom e of the proceeding m ay have been affected by the alleged violation.”) (quotation m arks and em phasis om itted). 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 pro t e c tion from rem oval has the b urden of proof to establish that the alien—(i) satisfies the applicable eligibility requirem ents; and (ii) with respect to any form of relief that i s gran t e d i n th e exercise of discretion, that the alien m erits a favorable exercise of discretion.”

6 Section 1229a(b)(4)(C) provides that “a com plete record shall be kept of all testim ony and evidence produced at the proceeding.” Alanniz does not allege that the adm inistra t i v e record does not include all the evidence that was actually produced.A LA N NI Z V

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2012 hearing his attorney reviewed the parole docum ent and dem urred to Respondent’s statem ent that it was a Form I-131 application to allow travel. Moreover, Alann i z offers no suggestion as to how the particular language in the 1997 docum ent would have any im pact on his case. Indeed, under

our controlling precedent ofMedina-Nunez
, it d o es n o t m atter what typ e o f parole issued in 1997, b ecause whatever its nature it does not constitute an adm ission.

In sum , even if Alann i z ha s not forfeited his right to challenge the absence o f the 1 997 parole docum ent from the record, h e i s not entitled to relief because (a) it was his responsibility to request the d ocum ent, which he failed to do, and (b) the absence of the do c ume nt was not prejudicial to Alanniz.

III

Alanniz asserts th at the BIA erred in holding that he did not challenge the IJ’s determ ina t ion that he was not eligible for protection under the CAT. He cites 8 C.F.R. § 1208

. 1 3 ( c )(1) as p roviding that asylum applications filed after April 1, 1997 “shall also be considered for eligibility for withholding of rem oval under the C onvention Against Torture if the applicant requests such consideration or if the evidence presented by th e a l i en indicates that the alien m ay be tortured i n th e country of rem oval.” Alanniz claim s that he m entioned the CAT in his brief to the BIA, and that he need n ot use p recise legal term inology o r p r o vide a welldeveloped argum ent to m eet the exhaustion requirem ent.

The B IA properly found th at A lanniz did not challenge the IJ’s d ete rmi nation that he w as ineligible f or p rotectionA LA N NI Z V

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under the CAT. 7 W e h ave h eld 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 deem ed to h ave exhausted only those issues he raised and argued in his brief before th e BI A. ” Abebe v. Mukasey
, 554 F .3d 1 2 03, 1208 (9th Cir. 2009) (en banc). A review of Alanniz’s b rief to the BIA confirm s that he did not argue that h e was entitled to relief under the CAT. 8 M o r e o ver, it does n ot appear that Alanniz has proffered any evidence o f past torture. Alanniz has not shown that the BIA erred in concluding that he h ad not challenged the IJ’s denial of relief under the CAT.

IV

Alanniz a lso argues that the IJ m ischaracterized his proposed social group as “returning Mexicans from the U

. S

. , ” and that he alleged a n arr o wer group consisting of Mexican long-term residents of the United S tates, not Mexicans from the United States generally. The BIA redefined the group as “long term resi d e nts of the U.S. who have been deported to Mexico and will b e subject to kidnappings and extortion upon arrival in Mexico.” A lanniz objects that this am ounted to im proper fact-finding, which the BIA is not entitled t o do, and contends that this issue should be rem anded so that the IJ can address the social group proposed by Alanniz.

7 Alanniz’s reliance on 8 C.F.R. § 1208

. 3 1 (c ) is m isplaced. The regulation addresses the scope of an application for asylum
, but does not allow an applicant to reassert before us an i ssue h e did not raise before the BIA.

8 The CAT was m entioned only twice in Alanniz’s brief to the BIA, in the intro duction and in t he conclusion. The brief contained n o argum ent for relief under the CAT.A LA N NI Z V

. B AR

R 18
Respondent concedes that the IJ mi s characterized Alanniz’s p ro p o sed s o cial group as “returning Mexicans from the United States,” when Alanniz had define d h is proposed group as “long term residents of the U.S. wh o h av e been deported to Mexico and will be subject to kidnappings and extortion upon arrival in Mexico.” R espondent asserts that whether a proposed social group co n stitu t es a p articular so cial group is a q

uestion of law, but the cognizability of a putative social group also contains factual issues, citing P irir-Bo c v. Holder
, 750 F.3d 1077, 1 0 8 1 (9th Cir. 2014). Respondent requests a rem and of A lanniz’s requ e s t for asylum “so that the agency m ay conduct a case-specific analysis o f th e docum entary evidence Mr. Alanniz subm itted to th e imm igration judge.”

Be cause the proposed group as understood by the IJ is

som ewhat different from the group proffered by Alanniz, we accede to the parties’ request and rem and this issue to the

a g e n cy. Alanniz is entitled to have the IJ f irst consider the facts that define his proposed group, and neither the BIA nor the Ninth C ircuit is author i z e d to undertake the initial factfinding n ecessary to determ ine the viability of the group. See INS v. Orlando V

entura , 537 U.S. 12, 16 (2002) (stating the general rule that “a court of appeals should rem and a case to

an agency for d e c is io n of a m atter that statutes place prim ari l y in agency hands”); 8 C.F.R. § 1003.1(d)(3)(iv) (stating that the BI A “will not engage in factfinding in the course of deciding appeals”).

V

W e hold that our acceptance in Medina-Nunez
, 788 F.3d 1105, of the BI A’ s de finition of “adm itted in any status” in Reza-Murillo
, 25 I. & N. Dec. at 298–99, com p els theA LA N NI Z V

. B AR

R 19

conclusion tha t Al ann iz’s 1997 parole did not constitute an “adm ission.” It fo l lows that, because Alanniz was not “adm itted in any status” until h is adjustm ent to LPR in 2000, and because h e w as convicted for being under the i n fl u ence of cocaine in 2 006, he had not o btained the requisite seven y ears of continuous residency in the United States to b e eligible for cancellation of rem oval und e r 8 U .S.C. §1229b. The B IA p roperly determ ined that Alanniz is not eligible for cancellation of rem oval.

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

or the B IA to the absence of the 1 997 parole docum ent from the record does not constitute a forfeiture of his right to raise the issue, his objectio n is n ot m eritorious. R equesting the production o f the docum ent was part o f h i s b urden to dem onstra te eligibility for cancellation o f rem oval. Moreover, Alanniz h as failed to show any prejudice f rom the absence of the parole docum ent because the 1997 parole did not constitute an “adm ission” regardless of the nature of the parole. W e also h o l d that the BIA properly determ ined that Alanniz’s brief to the B IA did not challenge the IJ’s denial o f relief under the CAT. See Abebe , 554 F.3d at 1208.
Finally, we accede to the p art i e s ’ request to rem and Alanniz’s asylum claim to the agency to allow an IJ to undertake the initial fact-finding necessary to determ ine the viability of Alanniz’s proposed group, as defined by Alanniz.

A lan n iz’s challenge to th e p retermissio n o f h is ap p lication for c an c e llation of rem oval is DENIED and his asylum application is REMANDED for further fact-finding. Each side shall bear its own costs.