Opinion
No. 07-70962.
Argued and Submitted December 9, 2008.
Filed December 12, 2008.
Mario Acosta, Jr., Esquire, Martinez Goldsby Associates, Los Angeles, CA, for Petitioner.
CAC-District Counsel, Esquire, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Carol Federighi, Esquire, Senior Litigation Counsel, M. Jocelyn Lopez Wright, DOJ-U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A045-094-677.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Julio Cesar Calderon appeals the Board of Immigration Appeals's decision affirming the Immigration Judge's order finding that Calderon was a removable aggravated felon. The BIA affirmed the IJ on two grounds: (1) Calderon waived his right to contest removability; and (2) Calderon committed a crime of violence.
Calderon conceded before the IJ that his conviction qualified as an aggravated felony. Both times his case was before the BIA, he failed to provide any reason why he should be able to revoke his concession. His opening brief before us failed to even acknowledge the BIA's first reason for affirming the IJ. Even though the government highlighted this failure in its opposition brief, Calderon did not file a reply brief.
We "will not ordinarily consider matters on appeal that are not specifically and distinctly argued in [the] appellant's opening brief." Shanks v. Dressel, 540 F.3d 1082, 1086 n. 3 (9th Cir. 2008) (internal quotation marks omitted). "By failing to articulate any argument challenging [the BIA's affirmance based on Calderon's concession], [Calderon] has waived that argument." See Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1065 n. 17 (9th Cir. 2008). Although we have "discretion to review an issue not raised [in the opening brief] . . . when it is raised in the [opposition] brief," we decline to exercise that discretion in this case. See Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir. 2006) (internal quotation marks omitted). Unlike the IJ's decision in Mandujano-Real v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008), the IJ's decision in this case was not contrary to well-established law.
PETITION FOR REVIEW DENIED.