Ojeda-Martinez v. Holder , 383 F. App'x 683 ( 2010 )

Menu:

                                                                           FILED
NOT FOR PUBLICATION                           JUN 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GUSTAVO ISRAEL OJEDA-                             No. 06-70348
MARTINEZ,
Agency No. A077-336-508
Petitioner,
v.                                              MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2010 **
Pasadena, California
Before:         TROTT and W. FLETCHER, Circuit Judges, and BREYER,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
Gustavo Ojeda-Martinez is a native and citizen of Mexico who entered the
United States at age 11 without being admitted or paroled. Ojeda-Martinez was
legally adopted at age 20 by a United States citizen. The Immigration Judge (“IJ”)
held that Ojeda-Martinez does not qualify for cancellation of removal under
Immigration and Nationality Act (“INA”) § 240A(b)(1), 8 U.S.C. §
1229b(b)(1)(D). The IJ concluded that Ojeda-Martinez has no qualifying relative
as defined by INA § 101(b),

8 U.S.C. § 1101

(b). The Board of Immigration
Appeals (“BIA”) affirmed and adopted the IJ’s decision in its entirety, citing to
Matter of Burbano,

20 I&N Dec. 872

, 874 (BIA 1994).
Where the BIA cites Burbano, we review the IJ’s decision as if it were a
decision of the BIA. See Samayoa-Martinez v. Holder,

558 F.3d 897

, 899 (9th Cir.
2009). We review questions of law de novo. See Aguilar Gonzales v. Mukasey,

534 F.3d 1204

, 1208 (9th Cir. 2008). The BIA’s unpublished one-member opinion
interpreting immigration law may be entitled to deference under Skidmore v. Swift
& Co.,

323 U.S. 134

, 140 (1944). See Garcia-Quintero v. Gonzales,

455 F.3d 1006

, 1011–15 (9th Cir. 2006) (citing United States v. Mead Corp.,

533 U.S. 218

,
237 (2001)).
We lack jurisdiction under INA § 242(d)(1),

8 U.S.C. § 1252

(d)(1), to
review Ojeda-Martinez’s argument that his adoptive father is a qualifying relative
2
under INA § 240A(b)(1). At his hearing before the IJ, Ojeda-Martinez conceded
that he had no qualifying relative under § 240A(b)(1). In his brief to the BIA,
Ojeda-Martinez asserted only constitutional arguments and did not challenge the
IJ’s interpretation of § 240A(b)(1). We do not have jurisdiction to reach
arguments that were not presented to the IJ or BIA and that are raised for the first
time in a petition for review. See Barron v. Ashcroft,

358 F.3d 674

, 678 (9th Cir.
2004); see also Brezilien v. Holder

569 F.3d 403

, 412 (9th Cir. 2009) (applying
Barron to a post-REAL ID Act case).
Even if we had jurisdiction to consider Ojeda-Martinez’s statutory argument,
that argument fails because the plain language of § 101(b) controls the definition of
qualifying relative for purposes of cancellation of removal. See Moreno-Morantes
v. Gonzales,

490 F.3d 1172

, 1175 (9th Cir. 2007);

8 U.S.C. § 1101

(b)(2) (“The
terms ‘parent,’ ‘father,’ or ‘mother’ mean a parent, father, or mother only where
the relationship exists by reason of any of the circumstances set forth in
subdivision (1) of this subsection.”);

8 U.S.C. § 1101

(b)(1) (“The term ‘child’
means an unmarried person under twenty-one years of age who is . . . (E)(i) a child
adopted while under the age of sixteen years.”)
We also reject Ojeda-Martinez’s argument that application of §
101(b)(1)(E) to his application for cancellation of removal violates his right to
3
equal protection under the Due Process Clause of the Fifth Amendment. The
requirement under § 101(b)(1)(E) that an individual be under the age of 16 at the
time of adoption is just one distinction “of many drawn by Congress pursuant to its
determination to provide some but not all families with relief from various
immigration restrictions.” Fiallo v. Bell,

430 U.S. 787

, 797 (1977). “With respect
to each of these legislative policy distinctions, it could be argued that the line
should have been drawn at a different point . . . [b]ut it is clear from our cases, . . .
that these are policy questions entrusted exclusively to the political branches of our
Government.”

Id. at 798