Jesus Falomir-Montoya v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS HORACIO FALOMIR-MONTOYA, No. 18-71794 Petitioner, Agency No. A014-179-774 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 29, 2022** Pasadena, California Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN,*** District Judge. Petitioner, Jesus Horacio Falomir-Montoya, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal * 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 Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. of the denial of his application for a waiver of inadmissibility pursuant to former Immigration and Nationality Act (INA) § 212(c). The parties are familiar with the facts, and so we do not recount them here. We review findings of fact for substantial evidence and questions of law de novo. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we deny the petition for review. 1. Petitioner argues that the Department of Homeland Security (DHS) never properly alleged his 1996 theft conviction as support for the charge of deportability and that he adequately raised this issue to the BIA. The government did not allege this conviction in either the 1988 or the 1989 Order to Show Cause (both issued before the crime was committed) but did raise it as an allegation supporting deportability in 2013 using a Form I-261. 1 The BIA determined that Petitioner waived his claim that the conviction was not properly alleged because, in his briefing to the BIA, Petitioner stated only facts and failed to argue that what had happened was “erroneous, prejudicial, or that his right to fair notice was somehow compromised.” Because Petitioner raises a constitutional due process argument here, we have jurisdiction to review the merits even though the issue was not administratively exhausted before the BIA. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). The Form I-261 alleged the facts of the 1996 offense “in addition 1 A Form I-261 allows the government to add or substitute charges of deportability and factual allegations. 8 C.F.R. § 1003.30. 2 to those set forth in the original charging document.” “At any time during the proceeding, additional . . . factual allegations may be lodged by DHS in writing.” 8 C.F.R. § 1240.10(e). Petitioner, through counsel, conceded to the facts alleged in Form I-261. The government properly alleged that the 1996 conviction supported the charge of deportability. 2. Petitioner argues that the BIA erred in finding Petitioner’s convictions were crimes involving moral turpitude without conducting a divisibility …

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