Cenobio Acuna Rodriguez v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENOBIO ACUNA RODRIGUEZ, No. 13-71602
Petitioner, Agency No. A091-613-623
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2018**
Pasadena, California
Before: O'SCANNLAIN and IKUTA, Circuit Judges, and STEEH,*** District
Judge.
Cenobio Acuna Rodriguez petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s entry of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
final order of removal. He argues only that the BIA erred in concluding that he is
ineligible for cancellation of removal because he was previously convicted of a
“crime of violence.” See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii),
1229b(b)(1)(C); 18 U.S.C. § 16.
Because the facts are known to the parties, we repeat them only as necessary
to explain our decision.
I
By adopting its earlier decision in Matter of Martinez, 25 I. & N. Dec. 571,
573–74 (BIA 2011), the BIA determined that Rodriguez’s conviction under Cal.
Penal Code § 220 categorically qualifies as a crime of violence under both the so-
called “elements clause” of 18 U.S.C. § 16(a) and the so-called “residual clause” of
§ 16(b). The Supreme Court has since held that the residual clause is void for
vagueness, and Rodriguez is correct that § 16(b) may no longer serve as a valid
basis to support the BIA’s decision. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223
(2018). We may nonetheless uphold that decision if Rodriguez’s conviction still
qualifies as a crime of violence under § 16(a). See, e.g., United States v. Vasquez-
Gonzalez, 901 F.3d 1060, 1066–71 (9th Cir. 2018).
II
Although Rodriguez contends generally that the BIA erred in holding that
Cal. Penal Code § 220 is a crime of violence under § 16, his brief has focused only
2
on the BIA’s analysis under § 16(b). Rodriguez argued that § 16(b) is
unconstitutional, but he altogether failed to address whether the BIA was correct to
hold that his conviction also is a crime of violence under § 16(a)—even after the
government raised this issue in its response brief. Rodriguez has therefore waived
any challenge to the BIA’s § 16(a) determination. See, e.g., Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013) (“[Petitioner] has waived his
challenge to the BIA’s denial of his motion to reopen by failing to argue it in his
brief.”); Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 n.1 (9th Cir. 2008) (court
will not manufacture arguments for the appellant); Martinez-Serrano v. INS, 94
F.3d 1256, 1259–60 (9th Cir. 1996) (issues mentioned but not argued in
petitioner’s opening brief are waived).
PETITION FOR REVIEW DENIED.
3