Ralda v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3506
___________
JORGE RALDA; CAROLA LORENA RALDA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A73-174-735 and A97-157-207)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2013
Before: FISHER, GARTH and ROTH, Circuit Judges
(Opinion filed March 22, 2013)
___________
OPINION
___________
PER CURIAM
Jorge Ralda, a citizen of Guatemala, entered the United States without inspection
in 1988. In 1995, Ralda pleaded guilty in New Jersey state court to second degree
1
aggravated assault. N.J. Stat. Ann. § 2C:12-1(b)(1). Ralda’s wife, Carola Lorena Ralda,
who is also a Guatemalan citizen, entered the United States in 2000.
In 2007, the Government charged Ralda and his wife with removability for
entering without inspection, in violation of Immigration and Nationality Act (“INA”)
§ 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Ralda applied for cancellation of
removal under INA § 240A(b) [8 U.S.C. § 1229b(b)], and for special rule cancellation
under the Nicaraguan and Central American Relief Act of 1997 (“NACARA”).1 An
Immigration Judge (“IJ”) denied relief and the Board of Immigration Appeals (“BIA” or
“Board”) dismissed Ralda’s appeal. The Board essentially held that Ralda was ineligible
for both forms of cancellation because he failed to demonstrate that he had registered on
or before December 31, 1991, for benefits pursuant to the settlement agreement in Am.
Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC”). Ralda
filed a timely petition for review.
We granted the petition for review in part, denied it in part, and remanded the case
for further proceedings. Ralda v. Att’y Gen., 441 F. App’x 101 (3d Cir. 2011). As
relevant here, we held that the BIA erred in concluding that, because Ralda failed to meet
his burden of establishing that he timely registered for ABC benefits, it did not need to
address Ralda’s argument that his aggravated assault conviction did not constitute a crime
involving moral turpitude. Id. at 104-05. In particular, we noted that “while the failure to
1
Ralda’s wife was included as a derivative applicant on his applications.
2
timely file for ABC benefits would preclude relief under NACARA, it does not affect
whether Ralda is eligible for cancellation of removal under § 240A(b)(1).” Id. at 105.
“Because the BIA failed to consider Ralda’s contention that his aggravated assault
conviction was not a crime of moral turpitude for purposes of § 240A(b)(1) eligibility,”
we remanded the matter to the Board.
On remand, the BIA held that “a conviction for aggravated assault under N.J. Stat.
Ann. § 2C:12-1(b)(1) is categorically a crime involving moral turpitude.” See Partyka v.
Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005) (noting that court applies a categorical
approach to determine whether a state law conviction constitutes a crime involving moral
turpitude). In reaching that conclusion, the Board found that although the statute under
which Ralda was convicted “punishes attempts to cause serious bodily injury to another
with no resulting bodily harm, there is no distinction for immigration purposes with
respect to moral turpitude between the commission of the substantive crime and the
attempt to commit it.” In addition, the BIA determined that a reckless assault – the least
culpable mental state required for a conviction under § 2C:12-1(b)(1) – can implicate
moral turpitude. Consequently, the Board ruled that Ralda was ineligible for cancellation
of removal under § 240A(b)(1). INA § 240A(b)(1)(C) [8 U.S.C. § 1229b(b)(1)(C)]. The
BIA also concluded that Ralda’s wife was ineligible for cancellation of removal because
she did not accrue the requisite 10 years of continuous physical presence in the United
States before being served with the notice to appear in 2007. INA § 240A(b)(1)(A) [8
U.S.C. § 1229b(b)(1)(A)]; § 240A(d)(1) [8 U.S.C. § 1229b(d)(1)]. Ralda and his wife
3
filed another petition for review.
We have jurisdiction over the petition pursuant to INA § 242(a)(1) [8 U.S.C.
§ 1252(a)(1)]. But, as we have repeatedly held, the failure to identify or argue an issue
in an opening brief constitutes waiver of that issue on appeal. See, e.g., Bradley v. Att’y
Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010). The dispositive issue in this case is whether
the Board properly concluded that Ralda and his wife are statutorily ineligible for
cancellation of removal. That determination turns on whether Ralda was convicted of a
crime involving moral turpitude, INA § 240A(b)(1)(C), and whether his wife had
continuously been in the United States for the required 10 years, INA § 240A(d)(1).
Significantly, however, the petitioners’ counseled brief entirely fails to address these
questions. Instead, the petitioners focus on whether “[t]he [IJ] erred as a matter of law in
the standard . . . used to determine that [Ralda] was statutorily ineligible for” relief under
NACARA. As the Government points out, though, we have already held that we lack
jurisdiction to review the factual determination that Ralda failed to timely register for
NACARA relief and we rejected his contention that he was not provided with an
opportunity to testify. Ralda, 441 F. App’x at 103-04. Under these circumstances, we
conclude that the petitioners have waived any challenge to the BIA’s conclusion that they
are ineligible for cancellation of removal under INA § 240A(b)(1). Singh v. Gonzales,
406 F.3d 191, 195 n.5 (3d Cir. 2005).
For the foregoing reasons, we will deny the petition for review.
4