Cenobio Acuna Rodriguez v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2018
• Docket: 13-71602
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.