Rogelio Delgado Merino v. Loretta Lynch , 623 F. App'x 230 ( 2015 )

Case: 14-60668 Document: 00513280009 Page: 1 Date Filed: 11/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-60668 November 20, 2015
Summary Calendar
Lyle W. Cayce
Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60668
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 unrea-
sonably stringent evidentiary standard; (4) there was substantial evidence 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 adverse-
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 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 pre-
conclusion 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 conces-
sion 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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No. 14-60668
substances violation should have been brought under 8 U.S.C. § 1227(a)-
(2)(B)(i), which addresses offenses 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 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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