RICARDO AYALA-NEGRETE V. ERIC HOLDER, JR., No. 10-70837 (9th Cir. 2014)
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FILED SEP 12 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICARDO AYALA-NEGRETE, Nos. 10-70837, 13-72305 Agency No. A074-813-367 Petitioner, 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). AyalaNegrete 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 AyalaNegrete 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
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