Marco Sarinana Guridi v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JUN 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO CUAHTZIN SARINANA No. 11-71532
GURIDI,
B.I.A. No. A059-718-823
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued February 9, 2015; Resubmitted May 28, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
Judge.
Petitioner Marco Cuahtzin Sarinana Guridi, a native and citizen of Mexico
who was a legal permanent resident ("LPR") of the United States, seeks review of a
final order of removal issued by the Board of Immigration Appeals ("BIA"). An
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward F. Shea, Senior United States District Judge for
the Eastern District of Washington, sitting by designation.
immigration judge ("IJ") found Petitioner inadmissible because Petitioner had
admitted, at the Calexico West Port of Entry, that he possessed marijuana in the
United States. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing that an alien is
inadmissible if the alien admits having committed a controlled substance offense or
having committed an act constituting the essential elements of such an offense).
The BIA dismissed Petitioner’s appeal, concluding that the evidence that the
government submitted—a sworn statement signed by Petitioner—was reliable and
that the IJ did not err in finding Petitioner not credible.
1. We lack jurisdiction to consider whether Petitioner was properly placed
in removal proceedings as an arriving alien, see 8 U.S.C. § 1101(a)(13)(C)(v)
(defining the circumstances under which an alien is regarded as seeking
admission), because Petitioner did not exhaust this claim before the BIA. See 8
U.S.C. § 1252(d)(1) (limiting courts’ jurisdiction to claims that were exhausted
administratively). Contrary to Petitioner’s assertion, this claim is not "akin to" an
assertion of citizenship, which can be raised at any time because it would deprive
the agency of jurisdiction altogether. Whether Petitioner was treated as an arriving
alien or as a removable alien, the agency had jurisdiction over the proceeding.
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2. For the same reason, failure to exhaust the claim, we lack jurisdiction to
consider whether the IJ’s adverse credibility determination is supported by
substantial evidence. Id.
3. Petitioner was provided with an adequate definition of possession of a
controlled substance, 21 U.S.C. § 844(a), before making an admission. See In re
K–, 7 I. & N. Dec. 594, 597 (B.I.A. 1957). Contrary to Petitioner’s suggestion, the
definition did not need to identify the particular United States Code section or
statute at issue, as that information is unnecessary to defining the crime and its
essential elements understandably.
4. The removal order does not violate Petitioner’s right under the Fifth
Amendment to receive equal protection of the laws. Petitioner argues that an LPR
who committed the same controlled substance offense to which he admitted, but
who had remained in the United States, would not be removable, and that there is
no rational reason to distinguish between LPRs who leave the country and attempt
to return and LPRs who remain here. We are not persuaded.
In light of Congress’ plenary authority over immigration, "federal
classifications distinguishing among groups of aliens are valid unless wholly
irrational." Halaim v. INS, 358 F.3d 1128, 1135 (9th Cir. 2004) (internal quotation
marks and alterations omitted). Such classifications are entitled to a strong
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presumption of constitutional validity. See Nunez-Reyes v. Holder, 646 F.3d 684,
689 (9th Cir. 2011) (en banc). Here, the disparate treatment is between an
individual who left the United States, seeking to return, and an individual who has
remained. But "immigration laws can constitutionally ‘treat aliens who are already
on our soil (and who are therefore deportable) more favorably than aliens who are
merely seeking admittance (and who are therefore excludable).’" Alvarez-Garcia
v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir. 2004) (alteration omitted) (quoting
Servin-Espinoza v. Ashcroft, 309 F.3d 1193, 1198 (9th Cir. 2002)). In other
words, Congress’ decision to make entering the United States more difficult than
remaining here is not wholly irrational.
DISMISSED in part; DENIED in part.
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