Ricardo Ayala-Negrete v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO AYALA-NEGRETE, Nos. 10-70837, 13-72305
Petitioner, Agency No. A074-813-367
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 9, 2014**
San Francisco, California
Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.
Petitioner Ricardo Ayala-Negrete appeals from a final order of removal
issued by the Board of Immigration Appeals (BIA), and the BIA’s denial of his
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we affirm.
*
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).
Ayala-Negrete admits that he falsely claimed United States citizenship in an
attempt to gain entry at the border on August 13, 2001. He is therefore
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). Ayala-Negrete argues that this
ground of inadmissibility does not apply because he timely retracted his false claim
to the first border patrol agent to whom the claim was made. However, a retraction
made when disclosure of the falsity is imminent is untimely and does not purge the
taint. Valadez-Munoz v. Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010). Ayala-
Negrete’s retraction was not made until the agent ordered him to pull over for
further questioning, a point at which disclosure of the falsity was imminent.
Substantial evidence supports the BIA’s determination that the retraction was
untimely. See Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014).
Ayala-Negrete’s other contentions are unavailing. First, because an
immigrant who falsely claims citizenship is not eligible for a waiver of removal
based on hardship, Ayala-Negrete cannot obtain relief based on his claim that the
immigration judge (IJ) erroneously evaluated his extreme hardship showing. 8
U.S.C. §§ 1182(a)(6)(C)(ii), 1182(i). Second, the BIA and IJ did not violate
Ayala-Negrete’s due process rights by denying his motion to suppress the
testimony of a border patrol officer who allegedly misstated the date of Ayala-
Negrete’s illegal entry. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 370 (9th
2 13-72305
Cir. 2003) (en banc). Moreover, even if the admission of such evidence were
constitutional error, it was not prejudicial, as Ayala-Negrete’s own testimony
established his inadmissibility. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000). Finally, the BIA did not abuse its discretion in denying Ayala-Negrete’s
frivolous motion to reopen as untimely given that it was filed nearly two years
after the BIA issued its decision. See 8 U.S.C. §§ 1229a(c)(6)-(7).
AFFIRMED.
3 13-72305