Jesus Falomir-Montoya v. Merrick Garland

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…